Read the May 7, 2018 AODA Alliance Brief to the Ontario Employment Standards Development Committee on Its Draft Recommendations for Revisions to the 2011 Employment Accessibility Standard

Accessibility for Ontarians with Disabilities Act Alliance

United for a Barrier-Free Ontario for All People with Disabilities

www.aodaalliance.org aodafeedback@gmail.com Twitter: @aodaalliance

Brief to the Ontario Employment Standards Development Committee on Its Draft Recommendations for Revisions to the 2011 Employment Accessibility Standard

Via email at aoda.input@ontario.ca

To: Laura McKeen, Chair

Employment Standards Review Feedback

Accessibility Directorate of Ontario

777 Bay Street,

6th Floor, Suite 601A

Toronto, ON

M7A 2J4

May 7, 2018

1. Introduction

This is the AODA Alliance’s brief to the Employment Standards Development Committee on its draft recommendations for revisions to the 2011 Employment Accessibility Standard. The Ontario Government posted those draft recommendations online for public forum on March 20, 2018.

The AODA Alliance is a voluntary non-partisan coalition of individuals and organizations. Our mission is:

“To contribute to the achievement of a barrier-free Ontario for all persons with disabilities, by promoting and supporting the timely, effective, and comprehensive implementation of the Accessibility for Ontarians with Disabilities Act.” To learn about us, visit: https://www.aodaalliance.org.

Our coalition is the successor to the Ontarians with Disabilities Act Committee. The ODA Committee advocated more than ten years for the enactment of strong, effective disability accessibility legislation. Our coalition builds on the ODA Committee’s work. We draw our membership from the ODA Committee’s broad, grassroots base. To learn about the ODA Committee’s history, visit: http://www.odacommittee.net.

The AODA Alliance welcomes this opportunity to offer its input. We also repeat our offer to make a presentation directly to the Employment Standards Development Committee on our recommendations. The Transportation Standards Development committee took us up on that offer. We hope this Standards Development Committee will do the same.

The AODA Alliance has played a leading and highly-visible role in Ontario in raising a wide range of accessibility issues, including in the employment context. We have connections across Canada and internationally with, and are regularly consulted by accessibility advocates and governments as they grapple with how to tackle these issues.

Despite this, we regret that the Accessibility Directorate of Ontario did not include us in its pre-consultation activities that led to the focus areas of the Employment Standards Development Committee’s work. The Government’s March 20, 2018 posting included:

“Potential focus areas for the review were based on pre-consultation feedback …”

That was the first we heard of that pre-consultation. In contrast, the Accessibility Directorate of Ontario included us in its pre-consultation on the Health Care Accessibility Standard. We submitted a detailed brief to that pre-consultation.

As well, the Accessibility Ministry did not consult us in the development of its “Access Talent” strategy on improving employment for people with disabilities. Appendix 3 to this brief sets out our response to and critique of that strategy.

2. Overview of this Brief

The Accessibility for Ontarians with Disabilities Act (AODA) requires the Government to lead Ontario to become fully accessible by 2025. The Government must enact and effectively enforce all the accessibility standards needed to ensure that the AODA’s goal is achieved. An accessibility standard is a provincial regulation that spells out what an obligated organization must do to prevent and remove accessibility barriers and that sets time lines for this action.

In 2011, the Ontario Government enacted the Integrated Accessibility Standards Regulation (IASR) under the AODA. It includes, among other things, provisions addressing disability barriers in access to employment in Ontario. In this brief, we call that the 2011 Employment Accessibility Standard.

Under the AODA, the Government was required to appoint a Standards Development Committee to review that standard, and to recommend any revisions needed to ensure that employment becomes fully accessible to people with disabilities in Ontario by 2025.

In 2017, the Ontario Government appointed a new Employment Standards Development Committee to review the provisions of the 2011 Employment Accessibility Standard, and to make recommendations on any needed improvements. On March 20, 2018, the Ontario Government made public the initial or draft recommendations that the Employment Standards Development Committee has proposed, for public comment.

The AODA Alliance has solicited input from its supporters through its website, its mass email list, and repeatedly, on Twitter. Drawing on that feedback and on our extensive involvement in advocacy on accessibility issues in Ontario, this brief provides our feedback on those draft recommendations. We earlier circulated and posted on line a draft of this brief, seeking further input from our supporters and the public.

Our feedback set out in this brief is summarized as follows:

  1. The 2011 Employment Accessibility Standard is far too weak. It will not lead employment to become accessible to employees and job-seekers with disabilities by 2025, or by any time in the distant future, even if all obligated organizations fully complied with it to the letter. It needs substantial strengthening.
  1. The AODA Alliance agrees with a number of the draft recommendations that the Employment Standards Development Committee has proposed. However, those draft recommendations, if adopted, would not significantly improve the 2011 Employment Accessibility Standard, and would not make a significant improvement in the accessibility of employment for employees and job-seekers with disabilities.
  1. The Standards Development Committee’s draft recommendations are built on a misunderstanding of the purpose or aim of its review of the 2011 Employment Accessibility Standard. This review’s aim is not merely to see if the 2011 Employment Accessibility Standard is working “as intended”, or if it will “improve” accessibility”. The Standards Development Committee should aim to see if the 2011 Employment Accessibility Standard will ensure accessible employment for employees and job-seekers with disabilities by 2025.
  1. The AODA Alliance agrees with the Standards Development Committee that the long-term objective of the Employment Accessibility Standard should be strengthened. We propose reforms that are stronger than the wording that the Standards Development Committee proposes.
  1. Of the Standards Development Committee’s eight recommendations, four of them (Recommendations 1, 4, 5 and 7) merely call for the Government to provide better, more user-friendly public education information for employers regarding their duties owing to employees and job-seekers with disabilities. We agree with any such improvements, but also call for stronger recommendations including amendments to strengthen the Employment Accessibility Standard in these areas.
  1. We agree with one of the Standards Development Committee’s recommendations that calls for an actual amendment to strengthen the Employment Accessibility Standard, Recommendation 3 regarding notice to employees and job-seekers with disabilities about an employer’s policies and practices regarding the duty to accommodate employees and job-seekers with disabilities.
  1. The AODA Alliance does not necessarily agree with the Standards Development Committee’s recommendation that the Employment Accessibility Standard be amended to define the term “employee”. If such an amendment were made, we recommend that this term be broadly defined to accord with its interpretation in the Ontario Human Rights Code, that it include contractors and volunteers, and that it not be harmonized with other employment legislation (since such harmonization is likely not feasible).
  1. The AODA Alliance does not agree with the Standards Development Committee’s Recommendation 6, calling for amendments to the Employment Accessibility Standard regarding an employer’s duty to provide employees and job-seekers with disabilities with information on individualized emergency procedures.
  1. The AODA Alliance does not agree with the Standards Development Committee’s Recommendation 8, which would defer for five years any review of the Employment Accessibility Standard’s provisions on accommodating workers with disabilities in their return to work. Those provisions should be reviewed by the Employment Standards Development Committee now.
  1. The Employment Standards Development Committee should go much further in its recommendations, so that the Employment Accessibility Standard can live up to the goals of the AODA. At present, the 2011 Employment Accessibility Standard’s core focus is on putting in place formal procedures in each organization for an employee with a disability to request and receive an individualized workplace accommodation. The Employment Accessibility Standard needs to be substantially expanded to include requirements for the systematic identification, removal and prevention of recurring employment barriers within an obligated organization, such as barriers in the built environment, in choice of location for off-site office events, in office furniture and equipment, and in job descriptions. With proper action on this front, the workplaces of 2025 can be barrier-free. Without this, employers will continue to leave employment barriers in place, and will continue to create new ones. The workplace of 2025 will only become barrier-free for employees and job-seekers with disabilities if the Employment Accessibility Standard is revised to include strong and effective provisions that identify disability barriers that must be removed and prevented, that direct the corrective action needed, and that set time lines for this action.
  1. The standard should include provisions on addressing employment barriers in the context of a unionized workplace where there is a collective agreement.
  1. The standard should be expanded to implement in larger organizations a process for addressing in a fair and timely way the cost of barrier-removal and prevention and of individual accommodation.
  1. The standard should be expanded to create specific added measures to address the Ontario Government, Ontario Public Service and the broader public sector, as Ontario’s largest employer. This should include, among other things, strengthened provisions to ensure that the goods, services and facilities that the public sector procures for use in their workplaces are accessible to employees with disabilities.
  1. We endorse in principle the, Ontario Human Rights Commission’s recommendations in its May 4, 2018 letter to the Employment Standards Development Committee, set out in Appendix 2 to this brief.
  1. We recognize that in addition to a strengthened Employment Accessibility Standard, people with disabilities need strong new non-regulatory measures to substantially improve employment opportunities to people with disabilities. While the Government’s June 2017 “access Talent” strategy included some helpful measures, it is far too “high level”, and does not include the comprehensive package of concrete measures that job-seekers with disabilities need. The AODA Alliance’s analysis of “Access Talent” is set out in Appendix 3 to this brief.

Appendix 1 to this brief sets out the 21 recommendations that the AODA Alliance proposes in this brief.

3. Overall Problems with the 2011 Employment Accessibility Standard

Before turning to the specifics in the Employment Standards Development Committee’s draft recommendations that were made public for comment on March 20, 2018, it is important to first focus on the problems that face people with disabilities when they try to get, retain or return to work, and to identify the problems with the 2011 Employment Accessibility Standard.

The impediments facing people with disabilities  in the employment context were very well summarized in an excellent brief which Barrier-Free Manitoba submitted to the Manitoba Government after an extensive consultation with the grassroots disability community in that province. This submission gave feedback on a proposal for the contents of an Employment Accessibility Standard which the Government was aiming to enact under the Accessibility for Manitobans Act. That law was enacted in 2013, and was inspired by the Accessibility for Ontarians with Disabilities Act 2005. Barrier-Free-Free Manitoba is the non-partisan disability coalition that successfully advocated from 2008 to 2013 to get Manitoba’s accessibility legislation enacted. In that brief, entitled: “Getting to Work — Final Comments on the Proposed Accessible Employment Standard”, Barrier-Free Manitoba wrote:

“A large and growing body of research has identified many of the major barriers that will need to be addressed to achieve parity in employment rates. These include but are not limited to:

  • Misguided employer attitudes based on myths related to persons with disabilities.
  • Lack of employer knowledge about their human rights responsibilities related to prospective and current employees with disabilities.
  • Lack of employer knowledge of accommodation options and experience with employees with disabilities.
  • Lack of available expertise and support for employers in making reasonable accommodation.
  • Employers’ lack of accessible employment policies, practices and procedures.
  • Perceived concerns of prospective and current employees with disabilities related to discrimination and to sharing information about their disabilities as part of the hiring process or once on the job.
  • Government policies that create barriers and disincentives for persons with disabilities in seeking employment.
  • Lack of a robust government policy and program framework required to support a major increase in employment among persons with disabilities.”

We would add to that list the troubling fact that workplaces in Ontario are historically not designed or operated a way that is barrier-free for employees and job-seekers with disabilities. We discuss this further, later in this brief.

It is then necessary for the Employment Standards Development Committee to directly consider whether the 2011 Employment Accessibility Standard includes all the provisions needed, so that if all employers fully obeyed it, employment would become accessible for people with disabilities in Ontario by 2025. While well-intentioned, and helpful to a point, the 2011 Employment Accessibility Standard is far too weak. It will not lead employment to become accessible to employees and job-seekers with disabilities by 2025, or by any time in the distant future, even if all obligated organizations fully complied with it to the letter.

The 2011 Employment Accessibility Standard needs to be substantially strengthened. It must accomplish a lot between now and 2025 substantial strengthening.

The 2011 Employment Accessibility Standard mainly tries to implement the duty to accommodate employees with disabilities in individual cases. That duty has existed under the Ontario Human Rights Code since 1982. This is not a new obligation. Yet, s. 21 of the Employment Accessibility Standard provides that unless otherwise specified, small public-sector organizations had from 2011 (when the Employment Accessibility Standard was enacted) until 2015 under the AODA to comply with its limited procedural provisions (3.5 years). Large private sector organizations were given until 2016 (4.5 years). Small private sector organizations were given until 2017 (5.5 years). Yet any number of the IASR’s requirements could and should readily have been implemented years earlier by these organizations.

For example, no organization large or small needs three, four or five years to start notifying job applicants with disabilities that they can request accommodation in the recruitment process (s. 23), or to start to tell a successful job applicant with a disability about the organization’s policies for accommodating employees with disabilities (s. 24) or about the organization’s policies for accommodation supports (s. 25), or to consult with employees with disabilities on request, on needed communication supports (s. 26).

Because the 2011 Employment Accessibility Standard mainly seeks to implement an employer’s duty under the Ontario Human Rights Code to accommodate the needs of job-seekers and employees with disabilities, it is troubling that in several places, it only requires an employer to “take into account” an employee’s accessibility needs. To avoid falling short of settled human rights requirements, it should set out a stronger requirement — that the employer shall meet that employee’s accessibility needs except where it is impossible to do so without undue hardship to the employer. Merely “taking into account” an employee’s accessibility needs is not sufficient. An employer might argue that they took these into account, by simply thinking about them, without actually doing anything about them, even when doing something about them would cause the employer no undue hardship. From the enforcement perspective, it is harder to prove that an employer didn’t think about an employee’s accessibility needs. It is easier to prove that the employer did not in fact provide a needed accommodation.

Here are several examples of this deficiency in the 2011 Employment Accessibility Standard. Section 23 provides in part:

“(2) If a selected applicant requests an accommodation, the employer shall consult with the applicant and provide or arrange for the provision of a suitable accommodation in a manner that takes into account the applicant’s accessibility needs due to disability.”

Section 25 includes:

“25. (1) every employer shall inform its employees of its policies used to support its employees with disabilities, including, but not limited to, policies on the provision of job accommodations that take into account an employee’s accessibility needs due to disability.”

Section 28 includes:

“(2) the process for the development of documented individual accommodation plans shall include the following elements:

  1. The means of providing the individual accommodation plan in a format that takes into account the employee’s accessibility needs due to disability.”

Section 30 includes:

“30. (1) An employer that uses performance management in respect of its employees shall take into account the accessibility needs of employees with disabilities, as well as individual accommodation plans, when using its performance management process in respect of employees with disabilities.”

Section 30(1) provides:

“An employer that uses performance management in respect of its employees shall take into account the accessibility needs of employees with disabilities, as well as individual accommodation plans, when using its performance management process in respect of employees with disabilities.”

Section 31(1) states:

“An employer that provides career development and advancement to its employees shall take into account the accessibility needs of its employees with disabilities as well as any individual accommodation plans, when providing career development and advancement to its employees with disabilities.”

Section 32(1) specifies:

“An employer that uses redeployment shall take into account the accessibility needs of its employees with disabilities, as well as individual accommodation plans, when redeploying employees with disabilities.”

As addressed more extensively later in this brief, the 2011 Employment Accessibility Standard falls far short of what is needed to achieve its objective, because it does not specify in detail the specific barriers that need to be removed and prevented in the workplace, or the measures to be taken to remove and prevent them, or time lines for doing so. That would have significantly reduced the need for individualized workplace accommodation in a number of cases. As such, over the past seven years since the 2011 Employment Accessibility Standard was enacted, its provisions did not do anything to stop or slow down employers from creating new employment barriers, or from perpetuating or exacerbating existing ones.

In 2014, former University of Toronto Law Dean Mayo Moran conducted the second mandatory Independent Review of the AODA. In her widely-respected final report, she generally remarked on significant problems with the existing AODA accessibility standards. At that time, this included the 2011 Employment Accessibility Standard.

It is important for the Employment Standards Development Committee to act upon the key passages in the Moran Report as they bear on the 2011 Employment Accessibility Standard, and to ensure that recommended revisions to that standard rectify the concerns that the Moran Report found. Here are key extracts from the Moran Report on this topic. We recommend a read of the full report.

* “Barriers to employment received considerable emphasis during the consultations.  Individuals and organizations discussed the fundamental importance of a job to quality of life.  Viewed in this context, the unemployment of people with disabilities is harmful, not only because it causes poverty, but also because it means decisions in government, education, health care, business and other fields are made without their input.  “It is easy to ignore or forget about us,” as one presenter at a Toronto session said.…”

* “The mental health community feels strongly that mental health and other non-visible disabilities should be better integrated into the content of standards.  For example, it was suggested that the Employment standard should provide clear guidelines for accommodating employees with mental health disabilities.”

* “At present, there are many exemptions under the IASR for organizations with under 50 employees.  For example, they are exempt from requirements to prepare multi-year accessibility plans, make their websites accessible, develop a written process for employment accommodation, provide accessible exterior paths of travel, prepare written accessibility policies and file compliance reports, among other obligations.  It was suggested that one reason the AODA has not lived up to its potential is the number of organizations that are exempt from such obligations.”

* “Employment

Several participants argued that the Employment Standard in the IASR should be extended to cover volunteers and other unpaid workers.  Mental health patients often perform unpaid work as a pathway to employment and the Ontario Human Rights Commission has made it clear that the Human Rights Code applies to work-like contexts.

Business and disability stakeholders both observed that the standards address the stages in the employment lifecycle but leave out measures to actually promote employment.  Disability groups proposed creation of an accessibility employment centre under the standard.  This would develop a database on the skills and qualifications of people with disabilities – helping them to find jobs and employers to find candidates.  A business group tabled a similar proposal for an employment “hub” that would link multiple employers with people with disabilities seeking work.  More generally, a number of participants noted the importance of increasing the employment of persons with disabilities as a key element in ensuring full inclusion.

Business and disability stakeholders both observed that the standards address the stages in the employment lifecycle but leave out measures to actually promote employment.”

* “Several participants stressed that current AODA standards do little to remove existing barriers, though the AODA calls for this, leading people with disabilities to seek facility retrofits in particular through the Human Rights Tribunal.  A business group suggested removing disputes over retrofits from the realm of human rights and coming up with an objective standard for the accessibility of buildings to be applied province-wide.

The Review was told that a number of standards have weak or vague requirements that are out of step with the Human Rights Code.  Among the examples cited were:

Complete exemption of smaller organizations from many technical requirements, such as accessible websites.

Exemption of volunteers from the Employment Standard.

“Where not practicable” exemptions such as those concerning websites, accessibility in procurement, or external paths of travel.

Exemption of transit vehicles in a fleet as of July 1, 2011.

Disability stakeholders contend that standards that fall short of the undue hardship requirements of the Code should be amended through the Accessibility Standards Advisory Council review process.  Another suggestion was to involve the Ontario Human Rights Commission more extensively in the process of standards development.”

For all the foregoing reasons, we respectfully disagree with the statement in the March 20, 2018 report of the Employment Standards Development Committee, which stated:

The Employment Standards Development Committee offered no evidence for that sweeping conclusion. If there are great strides forward, there is no proof that it was due to the 2011 Employment Accessibility Standard.

It is reasonable to infer that this rosy language was included in the March 20, 2018 posting at the initiation of the Accessibility Directorate of Ontario. We understand that the Accessibility Directorate of Ontario takes active part in drafting such reports for Standards Development Committees. Moreover, we found strikingly similar language in the final recommendations of the Transportation Standards Development committee, which the Government posted for public comment two months later, on May 2, 2018. It says:

“The Committee acknowledged that, while great strides have taken place in achieving accessible transportation in Ontario by 2025, there is still work to do.”

4.        Principles That The Employment Accessibility Standard Should Fully Implement

The Employment Accessibility Standard should effectively implement and reflect these principles:

  1. These major steps must be undertaken to fulfil obligations under the Human Rights Code regarding employment:
  1. a) Existing workplace barriers must be identified and removed along reasonable time lines;
  1. b) New employment barriers must not be created;
  1. c) An employer has a duty, when designing, acquiring, or updating equipment, job descriptions, policies or practices in the workplace, or premises for work to occur, to fully take into account the needs of employees and job applicants with disabilities, so that they can fully participate in employment on a footing of equality;
  1. d) Employees and job applicants with disabilities should have their disability-related workplace needs accommodated where needed, to enable them to fully participate in employment based on their individual merits, except where the employer can prove that it is impossible to accommodate them without undue hardship;
  1. e) The duty to accommodate includes a duty to effectively investigate solutions to an employee’s accommodation needs. The employer may not simply consider the specific accommodations that the employee or job applicant requests. If, for proper reasons, the employer decides that a solution that the employee’s requests cannot be implemented because it will cause undue hardship to the employer, the employer has a duty to investigate other solutions until it finds one that solves the workplace accommodation need, without undue hardship. That duty to investigate solutions is subject only to the undue hardship defence;
  1. f) An employer, and where present, a union, have a duty to provide to employees and job applicants with disabilities, a welcoming environment within which to seek and receive needed workplace accommodations;
  1. The Employment Accessibility Standard, including specific actions and time lines under it, should not be designed on an incorrect assumption that employers are starting with this activity on Day One, after the Standard went into operation. Employers have been legally obliged to effectively identify, remove and prevent workplace barriers to full participation, and to accommodate the needs of employees with disabilities since 1982. That is when the Ontario Human Rights Code was amended to prohibit employment discrimination because of a mental or physical disability. This is not a new obligation which the AODA or the Employment Accessibility Standard created in 2005 or 2011.
  1. Within any organization, identifying, removing and preventing workplace barriers, and providing needed workplace accommodation, is everyone’s business. Responsibility to remove and prevent workplace barriers, and to provide effective workplace accommodation belongs to all those within an organization, not just to an employee with a disability’s direct supervisor or the human resources department.
  1. Under the Ontario Human Rights Code, if the workplace is unionized, the union, and not just the employer, can have shared responsibility for the identification, removal and prevention of workplace barriers, such as those that are rooted in a collective agreement. A union as well as the employer must help ensure that a collective agreement doesn’t create or perpetuate workplace disability barriers. No one, whether an employer or union, may take actions that impede effective accommodation of employees with disabilities.
  1. The duty to accommodate under the Human Rights Code requires serious and substantial efforts by the employer, and where relevant, by the union. The “undue hardship” defence is a tough test for an employer or union to meet. They must show that it was impossible to do anything more to accommodate the employee or job applicant without undue hardship to the employer or union, as the case may be. Undue hardship must be something much more than inconvenience or some cost to the organization. It is the employer’s, or where applicable, the union’s burden to prove that further accommodation of the employee’s needs will cause undue hardship. The Human Rights Code presumes that accommodation is feasible, unless the contrary is proved.
  1. The cost to an organization of providing a workplace disability accommodation is a relevant factor in assessing whether a needed accommodation imposes undue hardship on an employer. These principles apply to any consideration of whether the cost of an accommodation amounts to undue hardship to the organization:
  1. a) The cost of providing a workplace accommodation is a regular cost of doing business, and not some special cost. It usually would be tax deductible.
  1. b) Offsetting any cost concerns is the added benefit to the organization that comes from expending those funds on that workplace accommodation. If a retail establishment makes it front door wheelchair accessible to accommodate an employee with a mobility disability, this also enables the store to benefit from additional customers, i.e. those using wheelchairs, and those with a child in a baby stroller.
  1. c) The cost of accommodation can influence how long an organization can take to provide a needed workplace accommodation. If the cost is too much to absorb in an individual year, that doesn’t mean the organization need never do anything to accommodate. It may be able to spread that cost over two or more years, without undue hardship. That in turn may justify a longer time line for delivering the accommodation. It doesn’t justify a refusal to do anything ever to accommodate.
  1. d) If an organization needs time to effectively implement a long-term accommodation to the needs of an employee with a disability, the organization also has a duty in the meantime to provide interim accommodation, unless the employer can show that even providing an interim accommodation would cause it undue hardship.

5. Significantly Understating the Aim of the Standards Development Committee’s Review of the Employment Accessibility Standard

We are concerned that the Employment Standards Development Committee has been working under a significant misunderstanding and underestimation of the goal of its review of the 2011 Employment Accessibility Standard. From our overall understanding of the process, we anticipate that this likely emanated from the Accessibility Ministry and the Accessibility Directorate of Ontario, and was likely not a creation of the Standards Development Committee itself. Even if this significant error had originated from the Standards Development Committee, and not from the Accessibility Directorate, the Accessibility Directorate has so intensively involved itself in the work of Standards Development Committees that it should have set the record straight. This understatement of the Standards Development Committee’s goal weakens the entire review of the 2011 Employment Accessibility Standard.

The introduction to the Ontario Government’s March 20, 2018 online public announcement, which invites public input to which this brief responds (and which the Employment Standards Development Committee likely did not write) included:

“We are updating our accessible employment standards to make employment more accessible to people with disabilities.”

It also states regarding the Employment Standards Development Committee:

“The committee works to ensure employment is more accessible to people with disabilities.”

Later, the summary of the draft recommendations includes:

“The SDC recognizes the importance and priority of reducing barriers …”

Taken together, these passages dramatically understate and water down the aim of this review and of the Employment Accessibility Standard. The aim is not merely to make employment “more accessible” for people with disabilities, or to reduce barriers in employment. The AODA requires the goal to make employment “accessible” for people with disabilities, with no diluting qualifiers.

This is not a matter of quibbling over inconsequential words. If a mere handful of workplace barriers are removed, employment would become “more accessible” in Ontario. Yet that may not make any real difference for employees and job-seekers with disabilities. They will continue to face too many disability barriers.

Similarly, the Government’s posting waters down the goal of this review of the Employment Accessibility Standard where it states:

“Under the Accessibility for Ontarians with Disabilities Act, 2005 (AODA), we must review accessibility standards every five years to determine whether they are working as intended or need adjusting.”

That substantially understates the goal of this mandatory review of the 2011 Employment Accessibility Standard. As noted above, this review’s purpose is to ascertain whether the Employment Accessibility Standard is working sufficiently to ensure that employment becomes fully accessible to people with disabilities by 2025, the AODA’s goal. This Review should recommend improvements to ensure that the Standard will achieve that goal.

It is not sufficient for the Standards Development Committee to just ask if the Employment Accessibility Standard is working “as intended.” By that lesser and weak approach, the Employment Accessibility Standard would be fine, and would need no improvements, if it led employers to merely do whatever the original 2011 Employment Accessibility Standard spelled out. That would be sufficient, even if that left employment and workplaces in Ontario full of disability barriers, now and even long after 2025. If the original intent of the 2011 Employment Accessibility Standard fell below what the AODA requires for employment accessibility by 2025, neither we nor the Employment Standards Development Committee should be locked into or handcuffed by that insufficient goal. As this brief amply documents, the 2011 Employment Accessibility Standard, while helpful, was not capable of ensuring that employment and workplaces will become fully accessible by 2025, or indeed, ever.

It appears that this seriously flawed “working as intended” language emanates from the Accessibility Directorate. Substantially the same language was included in the initial draft recommendations of the Transportation Standards Development committee that were circulated last year for public comment.

We also note from the Ontario Government’s March 20, 2018 posting that the Accessibility Minister’s Mandate Letter to the Employment Standards Development Committee may have set too restrictive a focus for the Employment Standards Development Committee. The Government’s March 20, 2018 posting includes:

“Under this framework, the Minister asked that the review focus on requirements for sectors that were in effect for more than 24 months, as well as to identify any gaps that may remain in the standards, and to consider all possible solutions and tactics, including non-regulatory approaches. The review kicked off during the last year of implementation of the standard, effective for small organizations January 1st, 2017. Potential focus areas for the review were based on pre-consultation feedback and included:

  • clarity of requirements for individual accommodation plans
  • desire for clear guidance materials
  • disclosure of disability as activation for support and requirements to apply”

The foregoing areas are, of course, worth considering. However, the Standards Development Committee should not limit itself to those areas. As addressed further below, key disability barriers in employment are left out of these draft recommendations, but need to be tackled.

As well, the Standards Development Committee should consider the 2011 Employment Accessibility Standard as it applies to all sectors, not just those for whom the 2011 accessibility standard has been in operation for 24 months. The disability accessibility barriers we address below are obvious. We need no more experience to know that they are employment barriers. As well, all employers have now had fully seven years to get ready to comply, since the 2011 Employment Accessibility Standard was enacted.

The Ontario Human Rights Code’s disability provisions (which the Employment Accessibility Standard largely aims to implement) have been in force in some form since 1982, fully 35 years. The duty to accommodate employees and job-seekers with disabilities is not some dramatic new innovation in Ontario law. Years ago, it was substantially clarified by the Supreme Court of Canada, lower courts, human rights tribunals and labour arbitrators.

Moreover, the AODA’s 2025 deadline for full accessibility is looming closer and closer. It is six and a half years away. Yet people with disabilities continue to face cruel and unfair high unemployment rates. Former Lieutenant Governor David Onley has repeatedly said that the unemployment rate facing Canadians with disabilities is not only a national crisis – It is a national shame. The plight of excessively high unemployment facing people with disabilities was echoed by the Partnership Council on Employment in Ontario for People with Disabilities that the Ontario Government appointed in 2014.

As such, the can cannot be kicked down the road to the next AODA review of the Employment Accessibility Standard. That review is likely not to start until 2023 or 2024. By then, there will not be enough time to enact regulatory changes that will go into effect and can be fully implemented by 2025.

An AODA Standards Development Committee is not restricted to only address those things that a minister’s Mandate Letter outlines. It is open to the Employment Standards Development Committee to recommend any measures it considers advisable. Especially because the 2025 deadline is creeping up on us, it is all the more important for the Employment Standards Development Committee to bring forward any recommendations that it considers helpful, whether or not they fall outside the minister’s Mandate Letter.

6. Our Analysis of the employment Standards Development Committee’s Specific Recommendations for Revisions to the 2011 Employment Accessibility Standard

a) Review of the Long-term Objective of the Employment Accessibility Standard

The Employment Standards Development Committee was mandated to re-examine the 2011 Employment Accessibility Standard’s longterm objectives. The March 20, 2018 Government posting states the following about the original longterm objective of the 2011 Employment Accessibility Standard:

“The long term objective of this initial proposed employment accessibility standard is to set out -policies, procedures and requirements for the identification, removal and prevention of barriers across all stages of the employment life cycle for persons with disabilities.”

The Government’s March 20, 2018 posting incorrectly states that an accessibility standard’s long-term objectives are not set out in the accessibility standard itself. In fact, nothing prevents the Government from including that longterm objective in an accessibility standard. It is far preferable to include it in that regulation, so that it will serve as a guide to the regulation’s interpretation. There is no good reason for excluding it from the regulation’s text.

Let’s turn attention to the actual wording of the standard’s long term objective. The Employment Standards Development Committee recommends that this longterm objective be revised to read as follows:

“The long term objective of the Employment Standards is to identify, remove and prevent barriers across all stages of the employment life cycle for persons with disabilities by 2025.”

We agree that the original longterm objective is too weak and needs to be strengthened. It in fact is so circular in the way it was originally written that it said nothing beyond what the AODA itself says.

We also agree that the Employment Standards Development Committee’s proposed new wording is an improvement. However, we believe that that proposed wording does not go far enough to fulfil the AODA’s goals insofar as employment is concerned. Under the Standards Development Committee’s new wording, any removal or prevention of employment barriers would be enough to fulfil that objective, even if employment and workplaces remain largely inaccessible to many people with disabilities. We don’t believe that the Employment Standards Development Committee would have meant this.

The AODA requires that people with disabilities, including employees and job-seekers with disabilities, experience full accessibility to employment on or before 2025. Thus, the goal of the employment accessibility Standard should be the achievement of barrier free workplaces and full accessibility to employment for persons with disabilities on or before 2025.

It is therefore recommended that:

#1. The Standard should be amended to include a provision that states that the purpose of the Standard is to ensure that employment and workplaces in Ontario become barrier free for employees and job-seekers with disabilities, and that people with disabilities, including employees and job-seekers, have equal access to employment on or before 2025.

b) Standards Development Committee Recommendation 1: Improved clarity with the Ontario Human Rights Code

The Employment Standards Development Committee expressed a concern that a number of employers are confused about the relative roles of the Ontario Human Rights Code, as it relates to employment on the one hand, and of the provisions of the 2011 AODA Employment Accessibility Standard on the other. The Employment Standards Development Committee’s first recommendation is as follows:

“The SDC recommends the government and the Ontario Human Rights Commission (OHRC) review and strengthen guidelines and clarification for employers with regard to the differences between the Ontario Human Rights Code and the AODA’s Employment Standards.”

This is not a recommendation to revise the Employment Accessibility Standard. If anything, it is simply a recommendation that the Accessibility Directorate of Ontario and the Ontario Human Rights Commission should produce new materials that will more fully and effectively explain the relationship of the Ontario Human Rights Code on the one hand, and the AODA Employment Accessibility Standard on the other, in straightforward language for employers and others.

We certainly take no exception to this recommendation, and support the creation and wide distribution of any materials that will better inform employers on their legal duties owing to employees and job-seekers with disabilities. That the Employment Standards Development Committee received feedback showing a need for this regrettably shows that the Accessibility Directorate of Ontario and Ontario Human Rights Commission have not effectively discharged their responsibilities in this area. This is so, even though two successive AODA Independent Reviews have identified the pressing need for substantially improved efforts by the Government to equip obligated organizations to understanding their obligations under the AODA. This was the recommendation of the 2010 report of the first AODA Independent Review, conducted by Charles Beer and the 2014 report of the second AODA Independent Review, conducted by Mayo Moran. It is a strong indication that there are serious problems with the Ontario Government’s implementation of the AODA, that in 2018, almost 13 years after the AODA’s enactment, yet another official AODA body, this time the Employment Standards Development Committee, has had to again try to bring this need home to the Government.

It is all the more troubling that confusion remains over something that is actually quite simple. The Ontario Human Rights Code imposes a duty on employers to accommodate the disability-related workplace needs of employees and job-seekers with disabilities. The AODA Employment Accessibility Standard cannot and does not reduce that duty one iota.

The AODA Employment Accessibility Standard sets a series of procedures in place to help ensure that employers fulfil that duty to accommodate employees and job-seekers with disabilities.

The Ontario Human Rights Code imposes a general duty on employers to remove and prevent employment and workplace barriers against employees and job-seekers with disabilities, up to the point of undue hardship to the employer. If an employer failed to remove or prevent an employment or workplace disability barrier, that employer would have the burden to prove that it was impossible to remove or prevent that barrier, without suffering an undue hardship.

The AODA Employment Accessibility Standard can also spell out in detail the specific steps that an employer must take, and the time lines for action, to remove or prevent specified employment barriers. The 2011 Employment Accessibility Standard for the most part does not do this. Later in this brief we propose revisions to fill that serious gap in this accessibility standard.

Finally, s. 38 of the AODA makes it clear that if any two laws provide different levels of protection for people with disabilities, the stronger law prevails. Section 38 of the AODA provides:

“38.  If a provision of this Act, of an accessibility standard or of any other regulation conflicts with a provision of any other Act or regulation, the provision that provides the highest level of accessibility for persons with disabilities with respect to goods, services, facilities, employment, accommodation, buildings, structures or premises shall prevail.”

Therefore, if the AODA Employment Accessibility Standard includes a provision that is weaker than the Ontario Human Rights Code, an employer still must fully obey the stronger requirement in the Ontario Human Rights Code. If the AODA Employment Accessibility Standard requires more action, or faster action, for employees and job-seekers with disabilities than does the Ontario Human Rights Code, then the AODA Employment Accessibility Standard takes precedence.

The March 20, 2018 Government posting is partially incorrect where it states:

“Where the Ontario Human Rights Code and other employment laws come into conflict, the Code will prevail.”

If the AODA, or an accessibility standard enacted with it, guarantees greater rights to people with disabilities than the Ontario Human Rights Code, then the AODA prevails.

The AODA was enacted after a decade of grassroots disability advocacy from 1994 to 2005 by the AODA Alliance’s predecessor, the Ontarians with Disabilities Act Committee. Its aim is  to effectively implement the rights which the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms guarantee to people with disabilities, without their having individually to litigate  against each disability barrier they face, one at a time, under the Ontario Human Rights Code or the Charter of Rights.

We had offered to make a presentation to the Employment Standards Development Committee some months ago. We would welcome any opportunity to help clear up any confusion in this area.

An AODA standard is most effective when it meets or exceeds the relevant requirements under the Ontario Human Rights Code or the Canadian Charter of Rights and Freedoms. That would enable an employer to know that so long as they have complied with the AODA standard, they have also met or exceeded their duties under the Code and the Charter. To date, many if not most AODA accessibility standards do not live up to the Code and The Charter’s accessibility requirements.

If there remains confusion among some employers about the relative requirements of the Ontario Human Rights Code on the one hand, and the 2011 Employment Accessibility Standard on the other, this is likely due to the problematic way that the Employment Accessibility Standard is worded. As noted earlier in this brief, the Employment Accessibility Standard uses language regarding the duty to accommodate that is demonstrably weaker than the duty to accommodate employees and job-seekers with disabilities under the Code. As noted earlier, the standard often talks about a duty to merely “take into account” the disability-related needs of an employee’s job-seekers with disabilities, not a duty to actually accommodate those needs. To rectify this, the confusing diluted language in the Employment Accessibility Standard should be fixed.

We therefore recommend that:

#2. The standard should be revised to ensure that its measures for removing and preventing disability barriers, and the related time lines always meet or exceed the employer’s duties under the Ontario Human Rights Code and, where applicable, the Canadian Charter of Rights and Freedoms. For example, the standard should refer to the employer’s duty to accommodate the disability-related needs of employees and job-seekers with disabilities, and not a diluted duty to take into account their disability.

If employers are having difficulty finding out information that makes the message clear and obvious, we recommend that the Employment Accessibility Standard should have the relationship between it and the Ontario Human Rights Code written write in the standard. The standard is only about 3 pages long now. It won’t be hard to find. It does not matter that the AODA already says this. If employers are most likely to look to the wording of the standard itself, this information should be right there, in the standard.

We therefore recommend that:

#3. The standard should be amended to spell out in clear language the relationship between its requirements and those of the Ontario Human Rights Code. For example, the standard should state in as strong and clear terms as possible that nothing in it reduces or diminishes an employer’s duties under the Human Rights Code, including the duty to accommodate the workplace needs of job-seekers and employees with disabilities.

For obligated organizations that have a website, it would be worthwhile for their policies and procedures, as required in the Employment Accessibility Standard, to be posted online. This will help employees and job-seekers with disabilities find it. It will motivate obligated organizations to take it more seriously. It will help educate others working at that organization. It will help crowd-sourced AODA enforcement, since anyone in the public, or the Government itself, can visit the website and see if the required policies are posted, and if their contents are sufficient.

We therefore recommend that:

#4. The standard should be amended to require that obligated organizations of a sufficient size, that have a website are required to post their required policies and procedures on employment accessibility and accommodation on their website, if they have a website.

c) Standards Development Committee Recommendation 2:  Scope and Interpretation

The Employment Standards Development Committee’s second recommendation is as follows:

“The SDC believes a gap exists because a definition of “employee” is not included in the AODA and Integrated Accessibility Standards Regulation (IASR). The SDC recommends a definition of “employee” should be added to the AODA or IASR and be consistently applied throughout.

This definition should be consistent with the intent and purpose of the AODA and should be based on the employer–employee relationship.

Note: The SDC intends that any definition of employee added to the AODA or IASR harmonize with existing employment legislation.”

The Government’s March 20, 2018 posting notes that there is now no definition of “employee” in the AODA or the 2011 Employment Accessibility Standard. Unfortunately, the Employment Standards Development Committee did not give specifics on what problems, if any,  have arisen due to the lack of a definition of “employee” in the Employment Accessibility Standard, or how frequently that problem arises, or what adverse impact it has had, if any, either on employers or on employees and job-seekers with disabilities. There is also no indication whether the Accessibility Directorate of Ontario has tried to address this through online and other compliance guides and other resources. We note that the Ontario Human Rights Code has imposed strong and sweeping human rights obligations of equal treatment with respect to employment for decades, without that legislation including a statutory definition of “employment.”

If a definition of “employee” were included in the Employment Accessibility Standard, it needs to be a broad one. It must be at least as broad as the term “employment” as it has been interpreted in the Ontario Human Rights Code.

We respectfully do not agree with the Employment Standards Development Committee’s suggestion that this “employee” definition should also be harmonized with other employment legislation. Terms like “employee” may be defined in different ways in different laws. This is because different laws may be enacted to serve different purposes. To employers, it is understandable that they would rather have to deal with one all-purpose definition of “employee” for all legislation. However, that may simply not be workable.

Here, the purpose of the AODA is best served by a broad definition of “employee”, one that prevents obligated organizations from evading the AODA by the way they construct their relationship with those who work for them. It would be best if it includes contractors, to the extent that the Ontario Human Rights Code similarly covers contractors, in order to serve this same goal.

We therefore recommend that:

#5. If the Employment Accessibility Standard were to be amended to include a definition of “employee,” then:

  1. a) It should be a very broad and non-exhaustive definition, one that is at least as broad as the way “employee” is interpreted under the Ontario Human Rights Code.
  1. b) Contrary to the Employment Standards Development Committee’s draft recommendations, the definition of “employee” need not and should not be harmonized with other employment legislation, since there is no one omnibus definition of “employment” in all Ontario legislation.
  1. c) Any definition of “employee” should include contractors, to prevent evasion of this accessibility standard.

The Employment Standards Development Committee’s draft recommendations also note that the Employment Standards Development Committee considered whether to recommend that the Employment Accessibility Standard be amended to cover volunteers, and not just paid employees. It states:

“A vote was held but the motion did not pass.”

There is no indication of how many members voted for or against this proposal. The minister’s terms of reference for Standards Development Committees unfortunately require that an excessive 75% of a quorum vote in favour of a recommendation, for it to pass. On April 23, 2018, we wrote Accessibility Minister Tracy MacCharles to object to that 75% voting requirement. We there showed that a simple majority would better serve the AODA’s purposes than a 75% super-majority voting requirement.

The duty to accommodate and barrier removal and prevention can have important roles to play in the volunteer context. It may require greater flexibility, due to the difference between volunteer work and paid work. It is important to cover accessibility in volunteer work, since there are times when people with disabilities need to establish themselves via volunteer work, as a way to work towards securing paid employment.

Our concern is supported by the Ontario Human Rights Commission, the Ontario Government’s flagship agency that advocates for the protection of human rights in Ontario. In its May 4, 2018 submission to the Employment Standards Development Committee, the Ontario Human Rights Commission said this:

“The Initial Recommendations Report notes that the SDC considered but decided not to recommend removing the current exclusion of volunteers and other non-paid workers from the IASR employment standards. The SDC raised concern that small non-profit organizations with few staff and a large volunteer base might experience undue burden. However, the OHRC is concerned that the IASR’s current exclusion of volunteers and non-paid workers is contrary to human rights law.

The OHRC recommends amending subsection 20 (1) of the IASR to remove the blanket exclusion of volunteers and other non-paid workers with disabilities from application of the employment standards. The SDC might consider whether or not exclusion of volunteers and other non-paid workers might still be warranted under the IASR sections 28 and 29 requirements regarding documented accommodation and return to work processes and plans.”

It is noteworthy that the original exclusion of volunteers from the protection of the 2011 Employment Accessibility Standard came from an early decision of the Ontario Government. It was not something that the original Employment Standards Development Committee had recommended. In fact, over a decade ago, the Ontario Government tried to take this issue away from the original Employment Standards Development Committee. It gave that Standards Development Committee a Mandate Letter that limited the Committees work to paid employment, not volunteers. When the original Employment Standards Development Committee rendered its final report and recommendations a decade ago, it recommended that the current review of the 2011 Employment Accessibility Standard consider the inclusion of protection for volunteers in the Employment Accessibility Standard. The original Standards Development Committee said this in its transmittal letter of its final recommendations, dated September 22, 2009, referencing among other things that their points be considered in next review of the Employment Accessibility Standard:

“2. The EA-SDC understood its terms of reference.  It was careful to set requirements that fall within paid employment.  The Committee wishes to stress that full employment accessibility for persons with disabilities can only be achieved if attention is also paid to barriers that exist beyond the arena of paid employment. It identified barriers preventing access to positions in the volunteer sector and to accessibility in taking tests for skilled trades and in sitting examinations for the professions.  It also noted the importance of addressing barriers in the health sector that are faced by persons with disabilities. The EA-SDC recommends that these areas of interest for persons with disabilities be addressed by the government.  ”

We therefore recommend that:

#6. The standard should be revised to extend it to volunteer work, in terms that can provide more circumstance-specific flexibility for obligated organizations, as compared to paid employees.

d) Standards Development Committee Recommendation 3: Recruitment, General (Section 22)

The Employment Standards Development Committee’s draft recommendations’ third recommendation is as follows:

“In order to fully inform job applicants, Section 22 notice regarding availability of accommodations throughout recruitment by employers, should be expanded to include notice of availability of accommodation during employment. The policy intent is to amend Section 22 notice and not to expand other requirements of the Employment Standards.”

Section 22 of the 2011 Education Accessibility Standard, to which this recommendation refers, provides as follows:

“22. Every employer shall notify its employees and the public about the availability of accommodation for applicants with disabilities in its recruitment processes.”

We agree with this recommendation. We therefore recommend that:

#7. As the Employment Standards Development Committee’s draft recommendations propose, s. 22 of the Employment Accessibility Standard should be amended to require an employer to notify job applicants with disabilities, about the availability of accommodation of disability-related needs, in its recruitment processes and its entire employment life cycle.

The Employment Standards Development Committee’s draft recommendations raise a concern that an employer’s artificial intelligence-based systems may end up screening out job applicants due to their disabilities. The Employment Standards Development Committee’s draft recommendations include:

“The SDC also noted the importance of accessible notice and accessible job board websites. For example the SDC discussed inaccessible job ads and job application software. SDC members raised the potential of software having embedded algorithmic bias which discriminates against persons with disabilities. SDC members recognized the importance of having these systems remove bias as they may scan out qualified candidates. The SDC suggested that the Standards Development Committee which is tasked with developing the Information and Communications standards under the AODA consider this issue.”

We share this concern and commend the Employment Standards Development Committee for raising it. However we propose that it is the Employment Standards Development Committee, and not the Information and Communication Standards Development Committee that should address it. Machine-based resume-screening is not an information and communication issue. It is a potential barrier in the employer’s decision-making process over whom to interview for a job, or whom to hire. The Employment Accessibility Standard aims to ensure, among other things, that decisions over whom to hire are free from disability barriers and discrimination

We therefore recommend that:

#8. The standard should be amended to include measures to ensure that machine-based and artificial intelligence-based systems used to screen job applicants in the hiring process are free from disability barriers and discrimination.

e) Standards Development Committee’s Draft Recommendation 4: Recruitment, assessment or selection process (Section 23)

The fourth recommendation in the Employment Standards Development Committee’s draft recommendations provides:

“The SDC recommends that guidelines and best practices should be developed on how to make the recruitment, assessment and selection processes and materials inclusive by design.”

Section 23 of the 2011 Employment Accessibility Standard now provides:

“23. (1) During a recruitment process, an employer shall notify job applicants, when they are individually selected to participate in an assessment or selection process, that accommodations are available upon request in relation to the materials or processes to be used.

(2) If a selected applicant requests an accommodation, the employer shall consult with the applicant and provide or arrange for the provision of a suitable accommodation in a manner that takes into account the applicant’s accessibility needs due to disability.”

Here again, the Standards Development Committee is not recommending any revision to the Employment Accessibility Standard. The standard here merely states what the Ontario Human Rights Code has in effect required since 1982.

The Standards Development Committee It is instead calling on the Government to provide more and better training materials for employers. To explain this, the Standards Development Committee stated:

“The SDC did not choose to propose a regulatory recommendation to address this gap because the committee felt the issue primarily dealt with attitudinal bias that requires a broader cultural shift beyond regulation (e.g., guidance, education and awareness).”

The fact that a recurring employment barrier can be traced to attitudes among some employers does not, of itself, say there is no room for an appropriate addition to the Employment Accessibility Standard, beyond any greater expansion in resources available to employers. Many disability barriers can be linked in some way to the same problem.

We therefore recommend that:

#9. The Standards Development Committee should investigate which recurring disability barriers occur at the recruitment stage of the employment life cycle, and recommend concrete measures to remove and prevent those barriers.

f) Recommendation 5: Notice to successful applicants (Section 23 & 24)

The fifth recommendation in the Employment Standards Development Committee’s draft recommendations is as follows:

“Too often employers and candidates do not know when or how to have open and successful conversations to accommodate an individual’s needs. In order to address this gap the SDC recommends the government should review, strengthen and better promote guidelines and best practices to clarify requirements under sections 23 and 24.”

We set s. 23 of the Employment Accessibility Standard out above. Section 24 of the Employment Accessibility Standard provides:

“24. Every employer shall, when making offers of employment, notify the successful applicant of its policies for accommodating employees with disabilities.”

Here again, any additional educational supports for employers can be helpful. However, the Standards Development Committee’s discussion identifies a problem which is much easier to solve. The Standards Development Committee was concerned about employers who don’t know which employees may have a disability, and people with disabilities who may be reluctant to disclose their disability.

An obvious and easier solution is to amend ss. 23 and 24 to require employers to let all job applicants and those who are hired about the employer’s policies and preparedness to fulfil the duty to accommodate employees with disabilities. If the job applicant or employee, so notified, has a disability, they need not disclose it to receive this information. If they have no disability, it is still doubly helpful for them to receive this information, when they first connect with the employer. First, if they acquire a disability later while working there, it will be helpful for them to have known since Day 1 with that organization, that this employer provides them with a welcoming environment for workplace accommodation. No one can predict on Day 1 who will later acquire a disability.

Second, if they never themselves need a workplace accommodation, they will still have been alerted from Day 1 about the importance of workplace accommodation. This will help ensure that the workplace is a welcoming environment for all those employees who, at some time or other need disability-based accommodation.

We therefore recommend that:

#10. Sections 23 and 24 of the standard should be amended to require that all job applicants and employees be notified of the availability of workplace accommodations, referred to in those sections, whether or not they appear to have a disability or have disclosed that they have a disability.

g) Standards Development Committee’s Recommendation 6: Workplace emergency response information (Section 27)

The Standards Development Committee’s fifth draft recommendation provides:

“The desired outcome of Section 27 is to ensure accessible emergency response information is available to all employees with disabilities in accessible formats, upon request.

Section 27 makes references to “individualized” emergency response information. The SDC believes the use of the word “individualized” may result in obligated organizations unnecessarily developing individualized emergency response plans. The SDC recommends the word “individualized” be removed from Section 27.

Questions of individualized emergency plans and emergency accommodations needs are best addressed as part of Section 28 requirements for individualized accommodation plans.

Recommendation note: If the word “individualized” is removed from Section 27, consequential amendments will need to be made to Section 28(3).

Under Section 27 of the Employment Standards employers are required to provide individualized workplace emergency response information under the following conditions:

  • when the employee’s disability is such that the information is necessary; and
  • the employer is aware of the need for accommodation because of the employee’s disability.
  • Employers shall provide the information required under this section as soon as practicable after the employer becomes aware of the need for accommodation due to the employee’s disability.”

The Employment Standards Development Committee later stated:

“The SDC continued to have a discussion about compliance with the requirement and explained even with high compliance rates concerns remained about whether Section 27 was achieving the intended outcome. SDC members believed more clarity was required in the Employment Standards to achieve this outcome.”

Sections 27 and 28 of the 2011 Employment Accessibility Standard provide:

Workplace emergency response information

  1. (1) Every employer shall provide individualized workplace emergency response information to employees who have a disability, if the disability is such that the individualized information is necessary and the employer is aware of the need for accommodation due to the employee’s disability.

(2)  If an employee who receives individualized workplace emergency response information requires assistance and with the employee’s consent, the employer shall provide the workplace emergency response information to the person designated by the employer to provide assistance to the employee.

(3)  Employers shall provide the information required under this section as soon as practicable after the employer becomes aware of the need for accommodation due to the employee’s disability.

(4)  Every employer shall review the individualized workplace emergency response information,

(a)       when the employee moves to a different location in the organization;

(b)       when the employee’s overall accommodations needs or plans are reviewed; and

(c)       when the employer reviews its general emergency response policies.

Documented individual accommodation plans

  1. (1) Employers, other than employers that are small organizations, shall develop and have in place a written process for the development of documented individual accommodation plans for employees with disabilities.

(2)  The process for the development of documented individual accommodation plans shall include the following elements:

  1. The manner in which an employee requesting accommodation can participate in the development of the individual accommodation plan.
  2. The means by which the employee is assessed on an individual basis.
  3. The manner in which the employer can request an evaluation by an outside medical or other expert, at the employer’s expense, to assist the employer in determining if accommodation can be achieved and, if so, how accommodation can be achieved.
  4. The manner in which the employee can request the participation of a representative from their bargaining agent, where the employee is represented by a bargaining agent, or other representative from the workplace, where the employee is not represented by a bargaining agent, in the development of the accommodation plan.
  5. The steps taken to protect the privacy of the employee’s personal information.
  6. The frequency with which the individual accommodation plan will be reviewed and updated and the manner in which it will be done.
  7. If an individual accommodation plan is denied, the manner in which the reasons for the denial will be provided to the employee.
  8. The means of providing the individual accommodation plan in a format that takes into account the employee’s accessibility needs due to disability.

(3)  Individual accommodation plans shall,

(a)       if requested, include any information regarding accessible formats and communications supports provided, as described in section 26;

(b)       if required, include individualized workplace emergency response information, as described in section 27; and

(c)       identify any other accommodation that is to be provided.”

We do not see a need for the amendment that the Standards Development Committee proposes. We fear that it may unintentionally work against the needs of people with disabilities. An employee with a disability should, if they so request, get safety information that is tailored to their needs. Thus, as s. 27 now properly provides, it should be individualized. The Standards Development Committee’s explanation does not make a convincing case that the proposed amendment would be beneficial.

We therefore recommend that:

#11. The Standards Development Committee’s fifth recommendation, to remove the word “individualized” from s. 27 of the 2011 Employment Accessibility Standard, should be rejected.

h) The Standards Development Committee’s Recommendation 7: Centralized portal for individual accommodation plans (Section 28)

The Employment Standards Development Committee’s seventh draft recommendation is as follows:

“The tools and resources that exist are not easy to find and use outdated language. The SDC recommends the government should be responsible for a centralized portal for updated resources for individualized accommodation plan processes.

Note: The intent of the recommendation is that the tools and resources align with the OHRC’s policies on the procedural duty to accommodate. In addition, the OHRC should be consulted to ensure harmonization.”

The Standards Development Committee expressed a concern that resources to help employers know what they need to do under s. 28 of the 2011 Employment Accessibility Standard, to put in place an individual employment accommodation plan for those employees with disabilities who need one are hard to find, scattered in different places, not up-to-date and not written in plain language. In short, this is yet another call for the Ontario Government to do a much better job in providing clear, current, comprehensive and user-friendly guides for employers. This involves no amendment to the accessibility standard. Here too this is powerful evidence of a serious deficiency in a core responsibility of the Accessibility Directorate of Ontario, if the resources on point are as problematic as the Standards Development Committee indicates.

We do not oppose improving those materials. However, we are deeply concerned that this situation is reported by the Employment Standards Development Committee some seven years after the 2011 Employment Accessibility Standard was enacted.

We therefore recommend that:

#12. Where the Standards Development Committee recommends improved training and information resources for employers, these should be created and made available within four months from now.

i) The Standards Development Committee’s Recommendation 8: Monitoring implementation of return to work processes (Section 29)

The Employment Standards Development Committee’s eighth and final draft recommendation is as follows:

“The Committee believes the desired outcome of Section 29 is that employers create processes that better recognize the needs of persons returning to work. The return to work processes under other legislation are constantly evolving, so more information, research and public feedback may be required. The government should monitor the implementation of Section 29, including any gaps and challenges to inform the next review of the accessible Employment Standards.”

Section 29 of the 2011 Employment Accessibility Standard, to which this draft recommendation refers, provides as follows:

“29. (1) Every employer, other than an employer that is a small organization,

(a)       shall develop and have in place a return to work process for its employees who have been absent from work due to a disability and require disability-related accommodations in order to return to work; and

(b)       shall document the process.

(2)  The return to work process shall,

(a)       outline the steps the employer will take to facilitate the return to work of employees who were absent because their disability required them to be away from work; and

(b)       use documented individual accommodation plans, as described in section 28, as part of the process.

(3) The return to work process referenced in this section does not replace or

override any other return to work process created by or under any other statute.”

In substance, the Standards Development Committee is recommending that any review of this provision be deferred to the next five-year review of the Employment Accessibility Standard. This raises a serious concern. As noted above, that review will likely not occur until 2023 or 2024. By then it will be too late to fix it, in order to ensure full accessibility in employment by 2025.

We encourage the Standards Development Committee to instead identify now the specific feedback it has received on point. The Employment Standards Development Committee should also reach out now to pro-actively consult with injured workers, and with organizations that advocate for them. The Standards Development Committee should learn what their front-line experiences are now with disability barriers when trying to return to work.

Are employees with disabilities who go off work due to disability, and who later try to return to work, reporting that they are having no problem getting their employer to fulfil its duty to accommodate their disability in their return to work? If no problems are reported, then this provision of the Employment Accessibility Standard need not be revised. If, however, problems continue to persist, then these should be identified now, not in five years, so that revisions to strengthen the provision can be made now. If return to work measures under other legislation have not been sufficient, then the Employment Standards Development Committee should recommend that the Employment Accessibility Standard include stronger protections, and that these should prevail over any other legislation that is less protective of the rights of injured workers.

We therefore recommend that:

#13. The Standards Development Committee should consider whether employees with disabilities who attempt to return to work after being off work due to disability are having their disability needs effectively accommodated in the return-to-work process. It should reach out now to injured workers and to organizations that advocate for them, for feedback and advice. It should recommend any needed reforms to the Employment Accessibility Standard now. It should not defer that issue until the next five-year review of the Employment Accessibility Standard.

7. AODA Alliance Recommendations on Additional Requirements that Need to Be Added to the 2011 Employment Accessibility Standard

a) Generally Expanding the Employment Accessibility Standard to Address Systematic Removal and Prevention of employment Barriers in an obligated organization

At present, the core focus of the 2011 Employment Accessibility Standard, and of the Standards Development Committee’s draft reform recommendations, are on putting in place formal procedures in each organization for an employee with a disability to request and receive an individualized workplace accommodation. These measures are helpful. Individual workplace accommodations will always be an important part of achieving equality for people with disabilities in the workplace.

However, alone, this won’t ensure that Ontario workplaces become fully barrier-free by 2025. This approach tends to assume that employers will carry on business as usual. Leaving existing barriers in place and creating new barriers. When an employee or job applicant with a disability encounters one of these workplace barriers, they have the burden to present this problem to their employer and try to get an individual accommodation. When an employer responds to an employee’s request for an individual accommodation of a disability-related need, the employer is typically involved in trying after-the-fact to alleviate or work around a barrier that has previously been created, and left in place, possibly for many years.

This disregards the core focus of the AODA, which is to get organizations to systemically and systematically remove and prevent disability barriers, so that individuals don’t have to keep battling barriers, one at a time. In addition to responding to individual requests for workplace accommodation, it is necessary for employers to take pro-active and systematic steps to identify and remove existing barriers in the workplace that impede employees and job applicants with disabilities, and to prevent the future creation of new barriers, without awaiting accommodation requests.

The workplaces of 6.5 years in the future have not yet been built, or even designed. The workplaces of five, ten or fifteen years ago were very different from the workplaces of today. Work-related technology, job descriptions and even the physical places where people do their work have changed over time. More flexible work arrangements, such as working from home, have grown and diversified.

The workplaces that will exist six and a half years from now, in 2025, will look quite different from those which exist today, just as the workplaces of today look quite different from those that existed five or 10 years ago. If revised as we propose, the employment accessibility Standard can provide an excellent means to help ensure in advance, that changes to the workplace implemented over the next years leading to 2025 will get employers to the goal of full accessibility by that year.

Put another way, in any work place, and particularly in any large workplace, there are recurring accessibility needs that can be reasonably expected in advance, and for which an employer can readily plan. To do so reduces the need for and the cost of individual accommodation and improves the workplace’s productivity.

The goal should be for work places to be designed and operated based on principles of universal design. This will not happen by accident. It will only happen if the Employment Accessibility Standard spells out what needs to be done to get to that destination. This accessibility standard can thereby generate more job opportunities for employees and job-seekers with disabilities. It will reduce the need for individualized workplace accommodations. It will make it easier and more efficient for employers to get the benefit of the talent and skills of employees with disabilities. It will save employers money.

Where workplaces systematically plan for and address these recurring accessibility needs in advance, job-seekers and employees with disabilities will thereafter less frequently need to seek individualized workplace accommodations to overcome workplace barriers. In contrast, barrier-free workplaces will not be achieved by 2025 where employers continue to design and operate their workplaces on an implicit assumption that their employees have no disabilities, thereby leaving it to an employee with a disability to come forward to identify themselves, and to present individualized workplace accommodation requests, one at a time, to counteract the consequences of that approach. A barrier-free workplace will open that workplace up to a greater pool of potential employees. It will enable the organization to more easily and effectively retain its existing workforce over the years, as its current employees acquire disabilities due to illness, accident or aging.

Nothing in the 2011 Employment Accessibility Standard now requires Employers, and especially large employers, to examine their workplaces to identify existing barriers to workplace accessibility, including barriers to the delivery of effective recurring accommodation needs, so that they can plan for addressing these over time. As an employer comes up with major new plans for the workplace, acquires new equipment or furniture for the workplace, or moves to a new location, it should take steps to make sure these new initiatives don’t create new barriers against job-seekers and employees with disabilities, and that where feasible, they reduce or eliminate existing workplace barriers. It would be very helpful, at least for larger private sector employers as well as all public-sector employers, to review their workplace and employment locations and systems to ascertain what barriers now exist.

There are several examples of barriers that easily illustrate how easily and effectively an employer can make progress in this area. For example:

The first category of recurring workplace barriers are those in the workplace’s built environment. The March 16, 2016 joint brief to the Government by the AODA Alliance and the ARCH Disability Law Centre included this, which applies fully here:

“The 2014 final report of the Mayo Moran AODA Independent Review concluded that there is a pressing need for action on built environment barriers, especially retrofits to existing buildings.

Built environment barriers must therefore now be addressed, where appropriate, in other AODA accessibility standards, to fill huge gaps that remain. Physical accessibility is an indispensable part of accessible Customer Service. If customers with disabilities cannot get into the facility where goods and services are provided to the public, they are already placed in a very disadvantageous position due to their disability.”

A new or renovated building that fully complies with the Ontario Building Code and AODA “public spaces” Accessibility Standard can, and often does include real and significant accessibility barriers. See e.g. the AODA Alliance’s online videos showing serious accessibility problems at the new Ryerson University Student Learning Centre, and the new Centennial College Culinary Arts Centre. The Government has announced no plans to rectify these pervasive problems in the Ontario Building Code or AODA accessibility standards.

There are several ways that the Employment Accessibility Standard could address this. For example, when an employer plans to move its operations to a new location, or to expand its operations to new premises, or designs or re-organizes office workspace, it can plan to do so in a way that ensures that the office workspace is maximally accessible to people with disabilities. This can include, for example, designing aisles, seating areas, and workstations based on universal design principles or with the flexibility that enables ready accommodation. If these steps are taken when an office is being reorganized, or a new office is being set up, accessibility can be built into the design, usually at very little cost. If an office has an existing workplace it is not slated for a major renovation, it is possible for an employer to identify readily achievable measures that will improve accessibility in the short run.

When an employer holds an off-site event for some or all employees (e.g. a staff meeting or retreat at another location, that is rented for that event), the standard should require efforts to ensure that the venue is accessible. Especially when the employer is located in a major urban setting like Toronto, Ottawa or London, it usually has options available to rent for venues to hold such events. To hold one in a venue that is disability-accessible doesn’t require the employer to retrofit any of its existing properties. It only requires the employer to choose a property from among the many available to rent, which is accessible. This provides two benefits. For the employees, it ensures accessibility to all. For the longer term, it will provide a financial incentive to hotels and other venues, rented for such events, to make sure their facilities are fully accessible, in order to broaden the market for their properties.

A second example of recurring workplace barriers concerns the office furniture and equipment that is purchased or rented for use by employees. It is not necessary for every last piece of inaccessible furniture and office equipment now in use in employers’ workplaces, to now be scrapped, and for them to now be all replaced with furniture and equipment that is fully accessible. There are many readily-achievable steps that can be taken, that fall short of this, and that will make substantial progress. This can include:

  1. a) Wherever new office furniture or equipment is acquired in future, where possible, obtaining accessible items.
  1. b) Identifying existing barriers in existing office furniture and equipment, and identifying priorities for redressing these over time e.g. via attrition;
  1. c) Arranging an employer’s existing office furniture and equipment in a way that makes it easiest to provide accessible workstations for an employee with a disability, pending replacement of existing furniture and equipment.

It is not sufficient to leave this matter to be dressed in the Information and Communication Accessibility Standard. With seven years of experience with that standard, it is clear that it has not resolved these problems in the workplace. Moreover many such barriers do not involved information and communication.

A third category of recurring workplace barriers concerns terms of employment, such as hours of work, and location of work. For persons with some kinds of disabilities, flexibility in working conditions are required, e.g. to enable them to attend regular medical treatments, or to address limits on their ability to work for extended consecutive hours. The option of flexible work arrangements can often assist, while maintaining and increasing productivity.

In all these examples, corrective actions are beneficial not only for employees and job applicants with disabilities, but also for existing employees who now have no disability, but who may get a disability later. As well, these measures will often assist in the accommodation of customers with disabilities. That too can increase a business’s profitability. A law firm whose office aisles are too narrow for a wheelchair to navigate impedes not only lawyers and office staff with disabilities, but also prospective clients with disabilities.

With proper action in the Employment Accessibility Standard aimed at identifying, removal and preventing disability barriers in the workplace, the workplaces of 2025 can be barrier-free. Without this, employers will continue to leave employment barriers in place, and will continue to create new ones.

It would be very helpful for this Standard to state explicitly that there is a duty to identify and remove existing workplace barriers, and not to create new workplace barriers. It would also be helpful to make it clear in the accessibility standard that this duty applies to everyone working for an employer. Removing and preventing barriers is everyone’s business. The Standard should also make it clear that no one may do anything which prevents or impedes the identification, removal or prevention of workplace barriers against people with disabilities, or that impedes the provision of needed workplace accommodation to employees or job applicants with disabilities.

As mentioned earlier, an early focus can first be on readily achievable improvements. For example, installing a Braille sign on bathroom doors, is both cheap and easy to do. Installing a portable “StopGap” ramp where there are a couple of steps to get into the workplace, is also easy to do.

Other examples can be found in the March 16, 2016 brief by the AODA Alliance and the ARCH Disability Law Centre. It proposes reforms to the 2007 Customer Service Accessibility Standard. These can easily be transplanted to the employment context. We regret that the Government did not act on any of our recommendations in that brief. It included:

“(ii) Snow is an inevitable reality in Ontario winters. Yet, piling snow up on accessibility ramps and paths of travel need not be. The Customer Service Accessibility Standard should require that piling snow in those areas should be avoided, except where it is impossible to do so.

(iii) Obligated organizations should be required to remove movable physical obstacles from main paths of travel within an obligated organizations Customer Service areas, and on any outdoor public path of travel leading to the entrance. For example, where signage can be situated in a place where customers with vision loss or other disabilities won’t collide with it, this should be preferred over placing it in the middle of main traffic halls or aisles. Head-level obstructions should be required to be avoided, especially where the obstacle cannot be safely detected by the use of a white cane.”

It also included:

“Individuals with invisible disabilities such as Multiple Chemical Sensitivities (MCS), or Idiopathic Environmental Intolerance (IEI), can easily be accommodated through the expanded visibility of no scent/fragrance policies. In addition, offices using cleaners should be required to use the least toxic or “green” cleaning products. All of us benefit from fewer toxins in the air. This signage, web postings, and related periodic announcements on the obligated organization’s public address system and telephone voice response system, where these communication systems already exist, will also serve as a low-cost or no-cost public education tool.

Posting signs in stores, offices, and customer service centers will promote understanding of, and responsiveness to, no scent policies. This policy should extend to scent policies in public spaces including on public transit.

Massey Hall and Roy Thompson Hall have signage posted and messages on their phone services while customers wait to purchase tickets, announcing their scent free policies. See also the University of Toronto’s Scent-Free Guidelines and Information Poster, as an excellent example. (https://www.utm.utoronto.ca/health-safety/information-campaigns/u-t-scent-free-guideline)”

Early attention should also focus on safety-related measures. This can include, for example, installing visual fire alarms, for the benefit of people with hearing loss in the workplace.

A decade ago, the original Employment Standards Development Committee’s final transmittal letter supports our call for systemic barrier review:

“3. This standard was developed with the awareness that employers already are prohibited by the Ontario Human Rights Code from discriminating in employment against Ontarians with disabilities.  The EA-SDC views the proposed standard as complementary to and building on the Human Rights Code.   This standard should assist employers to take concrete, consistent and pro-active steps to make their workplaces more accessible, so that there will be less frequent need for individual job applicants or employees to resort to the human rights complaints process.”

We therefore recommend that:

#14. The Standard should be expanded to set out:

  1. a) an explicit duty to identify, remove and prevent workplace barriers;
  1. b) a duty not to take any action that impedes the identification, removal or prevention of workplace barriers against people with disabilities, or that impedes the delivery of needed workplace accommodations to employees or job applicants with disabilities.

#15. The standard should be amended to include specific requirements for identification, removal and prevention of recurring workplace barriers over time, apart from fulfilling individual employee accommodation requests, e.g. barriers in office workspace, office equipment and technology and in terms and conditions of work. It should not just impose a duty on employers to plan. It should specify the barriers to be removed and prevented, and where possible, the specific steps that the employer should take to remove or prevent them.

To make this process work, it would be especially helpful if large organizations in the public and private sectors designate an employee (from the existing workforce, if they wish) to serve as that organization’s accessibility lead or accessibility champion. A commendable practice by Apple, IBM and Microsoft has been to designate a chief accessibility officer. In the employment context, this person would be mandated to oversee and champion efforts at creating a barrier-free workplace.

Many Ontario Government ministries have an accessibility lead position. However, these tend to be buried too far down the organization. This weakens their impact.

We therefore recommend that:

#16. The standard should be amended to require that large organizations in the public and private sectors designate an employee to serve as that organization’s accessibility lead or accessibility champion. It is preferable for that person to report to the organization’s top management.

b)          Building Barrier Removal and Prevention into The Collective Bargaining Process at a Unionized Workplace

Normally it is the employer who has the duty to accommodate, since the employer manages the workplace. However, under human rights law, if the terms of a collective agreement impede the effective accommodation of an employee with a disability, there are circumstances in a unionized workplace when the union must work together with the employer to ensure that the employee is effectively accommodated.

Human Rights cases make it clear that an employer cannot contract out of its duty to accommodate people with disabilities. They also make it clear that there are circumstances where a collective agreement between a union and employer can unintentionally operate to impede the effective accommodation of an employee in the workplace. This can result in a duty on the part of the union, and not just the employer, to help make sure that the employee is effectively accommodated.

The 2011 Employment Accessibility Standard does not specifically address the situation. It should be expanded to do so. It is not necessary or desirable for the Employment Accessibility Standard to set out in detail the duties of trade unions and employers when these situations arise. However, it would be helpful to expand the Employment Accessibility Standard to put in place a process, consistent with the traditional collective bargaining relationship of employers and unions, to help make sure that when collective agreements are bargained in the future, they are designed not to impede the achievement of barrier free workplaces.

A useful way that this could be achieved would occur when a union and employer sit down to bargain a new collective agreement, either because the old one has expired, or because this is the first contract to be negotiated. It would be helpful if during that collective bargaining process, the employer and union were to review any existing collective agreement, to identify if any barriers exist that would impede effective accommodation of employees or job applicants with disabilities, and if found, to negotiate provisions that address these barriers. It would also be helpful if during the collective bargaining process, the employer and union directed their attention to ensuring that no new barriers are created in the collective agreement that they eventually negotiate.

Similarly, in those very limited situations where a collective bargaining agreement is imposed through an arbitration process, rather than through negotiations, the arbitrator should be under a duty, in devising the collective agreement, to ensure that the contract doesn’t perpetuate any old barriers, or create any new barriers against employees or job applicants with disabilities. As part of that process, the arbitrator could invite the union and employer to make submissions on the identification of existing barriers in the expired collective agreement, or the existence of possible new barriers in proposed terms which one or other party has put on the table, and on strategies for removing and preventing such barriers.

It is not unusual for unions and employers, involved in the collective bargaining process, to come up with contractual terms to address such issues. For example, several collective agreements now commendably include “human rights” clauses. These repeat the guarantees of employment equality set out in the Human Rights Code. Under these clauses, unions can bring grievances against the employer under the collective agreement if the employer refuses to effectively accommodate an employee with a disability. Moreover, some collective agreements include terms that regulate which employees can work on which jobs at which times. Of these, some include exceptions to enable employees with disabilities to be able to move to job positions that they can do, even if they weren’t otherwise entitled to make that job move under the collective agreement. Unions have experience with this need, especially in workplaces with significant numbers of workplace injuries.

Such additions to the Employment Accessibility Standard would constructively build on the existing relationship between the union and employer, and the traditional collective bargaining process. It would implement the duties that the employer and union already have under human rights law. These can be fortified if the employer and union had added obligation to consult with employees with disabilities to help identify possible barriers in the workplace that need to be addressed.

In proposing this, we do not propose reducing in any way the employer’s primary obligation for achieving a fully accessible workplace and delivering needed workplace accommodations. We also do not propose that the process of providing workplace accommodation should be subject to collective bargaining, or that it become a bargaining chip during disputes between management and a union over other issues. An employer cannot negotiate away its duty to accommodate, nor contractually tie its hands in a way that impedes the delivery of effective workplace accommodation. We also don’t propose any alteration in the balance between unions and employers in the workplace. We simply propose that the union and employer direct their minds, while undertaking collective bargaining, towards ensuring that the result of the collective bargaining process promotes a barrier free workplace and doesn’t impede effective workplace accommodation of employees and job applicants with disabilities. In recommending this, we do not in any way propose to reduce the important duties of management and unions regarding workplace accommodation of employees with disabilities during the life of an existing collective agreement.

We therefore recommend that:

#17. The standard should be expanded to address the process of removing and preventing barriers to effective workplace accommodation and accessibility in the collective bargaining process and in collective agreements, which could:

  1. a) focus an employer and union, involved in the process of bargaining a collective agreement, on identifying and removing existing barriers in the collective agreement, and preventing the creation of new employment barriers;
  1. b) require a mediator or an arbitrator, undertaking binding arbitration of the collective agreement, to address identification removal of existing barriers, and prevention of new barriers in the collective agreement, including inviting submissions from the union and employer on this topic during the mediation/arbitration process;
  1. c) engage the employer and union in getting input from employees with disabilities on workplace barriers that may arise from the collective agreement;

c)           Planning For The Cost Of Workplace Accommodations

Some in the community in the past have approached these issues on the incorrect assumption that providing accessibility is some new obligation that the AODA created. Some have demanded that the Government pay for the cost of providing that accessibility before anyone outside the government should be required to do anything to remove or prevent barriers impeding persons with disabilities.

Yet these are not new cost burdens that the AODA has created in 2005. As noted earlier, since 1982, the Human Rights Code has required that barriers against persons with disabilities in accessing employment, goods, services and facilities be identified, removed and prevented.

Some workplace accommodations and some workplace actions to remove and prevent barriers can involve some up-front costs. Because they enable employees with disabilities to become more productive, these expenditures usually pay themselves off, typically with added benefits for the employer.

An organization’s ability to deliver timely, effective accommodation can be increased if it has in place a system to smooth the process of paying for these accommodations. Larger organizations, such as government departments, develop and operate under detailed annual budgets. If these don’t include specific allocations for workplace disability accommodations, there is the risk that the cost of accommodation will be treated as something “we don’t have budget for.”

The duty to accommodate is imposed on an employer as a corporate entity. It is no defence under human rights legislation to simply say that an organization has not budgeted for accommodation. Moreover, an organization’s duty to accommodate is not limited to undue hardship to a specific department’s budget. It is limited by undue hardship to the organization as a whole.

In the 1980s, the Ontario Government commendably put in place a very helpful system to help each Government department and agency cover the cost of individual workplace accommodations. It established a central fund, called the Employment Accommodation Fund, for this purpose. An individual government office could apply to that fund to reimburse it for costs of specific disability workplace accommodations. Each individual government office still had the ultimate responsibility to provide needed workplace accommodations for employees with disabilities who needed them. An individual government office cannot refuse to provide a needed workplace accommodation, on the grounds that the employment accommodation fund would not reimburse the cost. Thus, the employment accommodation fund did not have a veto over whether the worker would be accommodated. However, individual managers knew that they could have recourse to the employment accommodation fund.

In 2001, the Ontarians With Disabilities Act 2001 was enacted, the precursor to the AODA. It embedded this fund in legislation. Even though that law has been repealed, this Fund is still enshrined in Ontario legislation.

There need not be a one-size-fits-all solution to this issue. However, it would be helpful if the Employment Accessibility Standard established some basic requirements to achieve the objective of ensuring that an organization has in place an effective means for flowing funds to cover workplace accommodations that the Ontario Human Rights Code requires. By this, the Standard would not set the amount of money an organization should spend on workplace accommodation. That is a matter already governed by the Human Rights Code.

We would recommend that very large organizations such as large municipalities, hospitals, universities and school boards, and large private corporations be required to establish something comparable to the Ontario Government’s employment accommodation fund. For other larger organizations, it may be sufficient for the employment accessibility Standard at this point to simply require that they put something in place to address this need, leaving them flexibility on how it will operate. We don’t here propose that any measures be directed in this regard at small businesses.

We are not suggesting that major bureaucratic burdens be imposed on organizations, requiring a lot of paperwork or the hiring of additional staff. Also, to help make this easily and effectively enforceable, it should be easy to establish whether an organization has done what the Employment Accessibility Standard would require in this regard.

In proposing this, we proceed on the basis that the human rights code already requires employers to spend a certain amount of money on workplace accommodations i.e. where needed, up to the point of undue hardship to the organization. We are not here proposing to raise the bar. We’re simply proposing the establishment of a means within the organization to help best ensure that that money is available and accessed on a timely basis. We do not propose an organization set a ceiling in advance of how much it will spend on workplace accommodation. Those expenditures will have to be decided on a case-by-case basis.

We therefore recommend that:

#18. The Standard should be amended to require larger private sector organizations, and all public sector organizations, to establish, make public, and inform employees and job applicants about a process for making funds available within the organization, when needed for workplace accommodations, including:

  1. a) In the case of public sector organizations, establishing a central fund to cover the cost of accommodations, so long as that Fund is not treated as a ceiling of what the organization may expend on needed workplace accommodation;
  1. b) Large private sector organizations would either establish such a Fund or a comparable process.
  1. c) If an employee-requested workplace accommodation isn’t provided by the organization, on account of concerns over the cost or for any other reason, the organization’s chief executive officer should be required to be informed of this decision and the reason for it.

We further address this in connection with the Ontario Public Service in the next section of this brief.

d)          Additional Provisions Addressing The Ontario Government And Ontario Public Service As Employer

The Employment Accessibility Standard needs to be expanded to include additional provisions that specifically address the Ontario Government as an employer. These should aim at having the Ontario Public Service become a barrier-free workplace for employees with disabilities.

The Ontario Government is recognized as Ontario’s largest employer. It has claimed to want to lead by example as a model employer in this area. Yet its internal practices don’t live up to this commitment.

Because of the many workplace barriers in the private sector, many persons with disabilities have historically turned to the Ontario Government as a place to find a first job, and to develop a positive work record that they can later present to prospective private sector employers. Its distinctive role as an employer should be addressed in the Standard. The predecessor law to the AODA, the Ontarians with Disabilities Act 2001, included specific provisions bearing directly or indirectly on removing and preventing employment barriers in the Ontario Public Service. Even though the Ontarians with Disabilities Act has been repealed, those specific provisions have been preserved in Ontario legislation.

We therefore recommend that:

#19. The standard should be expanded to

  1. a) Ensure that access to the current Ontario Employment Accommodation Fund will be made available to any employee of the Ontario Government and any public official paid by the Ontario Government whether or not they are employed by a specific Ministry.

Under existing AODA requirements, the Ontario Government has undertaken training of its employees. The vast bulk if not virtual totality of this has been done by online point-and-click training modules. Managers need the vastly-superior benefit of face-to-face training in the areas of barrier-removal and prevention, and the duty to accommodate employees and job-seekers with disabilities.

We therefore recommend that:

#20. The standard should be expanded to

  1. a) require that training of management officials in the Ontario Public Service on employment accessibility standards issues be face-to-face, not on-line training, and
  1. b) require periodic training of co-workers in the Ontario Public Service on the duty to accommodate employees with disabilities, whether or not they have management responsibilities.

e)          Government Procurement of Goods and Services

The Ontario Government and the broader public sector (including public transit authorities, hospitals, school boards and municipalities) is, taken together,  a huge purchaser of goods and services that are used in the workplace. To achieve a fully barrier-free workplace, these organizations should only purchase goods and services that are barrier-free for employees with disabilities, absent some very compelling reason for not doing so. The Employment Accessibility Standard doesn’t now require the Ontario Government or any other employer to do this.

The Integrated Accessibility Standards Regulation 2011, of which the Employment Accessibility Standard is a part, includes a general provision regarding procurement. It is weak and has been ineffective at rectifying this issue. It provides:

“5.  (1)  The Government of Ontario, Legislative Assembly and designated public sector organizations shall incorporate accessibility design, criteria and features when procuring or acquiring goods, services or facilities, except where it is not practicable to do so.

(2)  If the Government of Ontario, Legislative Assembly or a designated public sector organization determines that it is not practicable to incorporate accessibility design, criteria and features when procuring or acquiring goods, services or facilities, it shall provide, upon request, an explanation.

(3)  REVOKED:

Self-service kiosks

  1. (1) Without limiting the generality of section 5, the Government of Ontario, Legislative Assembly and designated public sector organizations shall incorporate accessibility features when designing, procuring or acquiring self-service kiosks.

(2)  Large organizations and small organizations shall have regard to the accessibility for persons with disabilities when designing, procuring or acquiring self-service kiosks.

3(3), (4) REVOKED:

(5)  In this section,

“kiosk” means an interactive electronic terminal, including a point-of-sale device, intended for public use that allows users to access one or more services or products or both.”

It is insufficient to simply require the Government or the broader public sector to consider accessibility when purchasing goods and services. The Government could comply with this provision, by simply thinking about accessibility, but not doing anything about it. This provision has been insufficient to ensure that goods and services purchased for use in or by the Ontario Public Service are fully accessible to and usable by employees with disabilities. As far as we have been able to tell, no Standards Development Committee is doing a comprehensive review of these provisions. We need the Employment Standards Development Committee to do so, in so far as employment is concerned.

It is important that there be an effective process to monitor the Ontario Government’s compliance with these requirements, and to enforce non-compliance. Now, the Government has been lax in its overall enforcement of the AODA. We have no indication that the Government has focused on this part of the AODA in its enforcement. Even if there were, it would be a case of the Government enforcing the AODA against itself—hardly a situation in which the public can have any confidence.

We therefore recommend that:

#21.     The standard should be expanded to substantially strengthen requirements for procurement of accessible goods, services and facilities for use in the Ontario Government, the Ontario Public Service, and the broader public sector, including a process for effective monitoring and reporting to the public on the broader public sector’s performance in this context.

Appendix 1 List of the AODA Alliance’s Recommendations

#1. The Standard should be amended to include a provision that states that the purpose of the Standard is to ensure that employment and workplaces in Ontario become barrier free for employees and job-seekers with disabilities, and that people with disabilities, including employees and job-seekers, have equal access to employment on or before 2025.

#2. The standard should be revised to ensure that its measures for removing and preventing disability barriers, and the related time lines always meet or exceed the employer’s duties under the Ontario Human Rights Code and, where applicable, the Canadian Charter of Rights and Freedoms. For example, the standard should refer to the employer’s duty to accommodate the disability-related needs of employees and job-seekers with disabilities, and not a diluted duty to take into account their disability.

#3. The standard should be amended to spell out in clear language the relationship between its requirements and those of the Ontario Human Rights Code. For example, the standard should state in as strong and clear terms as possible that nothing in it reduces or diminishes an employer’s duties under the Human Rights Code, including the duty to accommodate the workplace needs of job-seekers and employees with disabilities.

#4. The standard should be amended to require that obligated organizations of a sufficient size, that have a website are required to post their required policies and procedures on employment accessibility and accommodation on their website, if they have a website.

#5. If the Employment Accessibility Standard were to be amended to include a definition of “employee,” then:

  1. a) It should be a very broad and non-exhaustive definition, one that is at least as broad as the way “employee” is interpreted under the Ontario Human Rights Code.
  1. b) Contrary to the Employment Standards Development Committee’s draft recommendations, the definition of “employee” need not and should not be harmonized with other employment legislation, since there is no one omnibus definition of “employment” in all Ontario legislation.
  1. c) Any definition of “employee” should include contractors, to prevent evasion of this accessibility standard.

#6. The standard should be revised to extend it to volunteer work, in terms that can provide more circumstance-specific flexibility for obligated organizations, as compared to paid employees.

#7. As the Employment Standards Development Committee’s draft recommendations propose, s. 22 of the Employment Accessibility Standard should be amended to require an employer to notify job applicants with disabilities, about the availability of accommodation of disability-related needs, in its recruitment processes and its entire employment life cycle.

#8. The standard should be amended to include measures to ensure that machine-based and artificial intelligence-based systems used to screen job applicants in the hiring process are free from disability barriers and discrimination.

#9. The Standards Development Committee should investigate which recurring disability barriers occur at the recruitment stage of the employment life cycle, and recommend concrete measures to remove and prevent those barriers.

#10. Sections 23 and 24 of the standard should be amended to require that all job applicants and employees be notified of the availability of workplace accommodations, referred to in those sections, whether or not they appear to have a disability or have disclosed that they have a disability.

#11. The Standards Development Committee’s fifth recommendation, to remove the word “individualized” from s. 27 of the 2011 Employment Accessibility Standard, should be rejected.

#12. Where the Standards Development Committee recommends improved training and information resources for employers, these should be created and made available within four months from now.

#13. The Standards Development Committee should consider whether employees with disabilities who attempt to return to work after being off work due to disability are having their disability needs effectively accommodated in the return-to-work process. It should reach out now to injured workers and to organizations that advocate for them, for feedback and advice. It should recommend any needed reforms to the Employment Accessibility Standard now. It should not defer that issue until the next five-year review of the Employment Accessibility Standard.

#14. The Standard should be expanded to set out:

  1. a) an explicit duty to identify, remove and prevent workplace barriers;
  1. b) a duty not to take any action that impedes the identification, removal or prevention of workplace barriers against people with disabilities, or that impedes the delivery of needed workplace accommodations to employees or job applicants with disabilities.

#15. The standard should be amended to include specific requirements for identification, removal and prevention of recurring workplace barriers over time, apart from fulfilling individual employee accommodation requests, e.g. barriers in office workspace, office equipment and technology and in terms and conditions of work. It should not just impose a duty on employers to plan. It should specify the barriers to be removed and prevented, and where possible, the specific steps that the employer should take to remove or prevent them.

#16. The standard should be amended to require that large organizations in the public and private sectors designate an employee to serve as that organization’s accessibility lead or accessibility champion. It is preferable for that person to report to the organization’s top management.

#17. The standard should be expanded to address the process of removing and preventing barriers to effective workplace accommodation and accessibility in the collective bargaining process and in collective agreements, which could:

  1. a) focus an employer and union, involved in the process of bargaining a collective agreement, on identifying and removing existing barriers in the collective agreement, and preventing the creation of new employment barriers;
  1. b) require a mediator or an arbitrator, undertaking binding arbitration of the collective agreement, to address identification removal of existing barriers, and prevention of new barriers in the collective agreement, including inviting submissions from the union and employer on this topic during the mediation/arbitration process;
  1. c) engage the employer and union in getting input from employees with disabilities on workplace barriers that may arise from the collective agreement;

#18. The Standard should be amended to require larger private sector organizations, and all public sector organizations, to establish, make public, and inform employees and job applicants about a process for making funds available within the organization, when needed for workplace accommodations, including:

  1. a) In the case of public sector organizations, establishing a central fund to cover the cost of accommodations, so long as that Fund is not treated as a ceiling of what the organization may expend on needed workplace accommodation;
  1. b) Large private sector organizations would either establish such a Fund or a comparable process.
  1. c) If an employee-requested workplace accommodation isn’t provided by the organization, on account of concerns over the cost or for any other reason, the organization’s chief executive officer should be required to be informed of this decision and the reason for it.

#19. The standard should be expanded to

  1. a) Ensure that access to the current Ontario Employment Accommodation Fund will be made available to any employee of the Ontario Government and any public official paid by the Ontario Government whether or not they are employed by a specific Ministry.

#20. The standard should be expanded to

  1. a) require that training of management officials in the Ontario Public Service on employment accessibility standards issues be face-to-face, not on-line training, and
  1. b) require periodic training of co-workers in the Ontario Public Service on the duty to accommodate employees with disabilities, whether or not they have management responsibilities.

#21. The standard should be expanded to substantially strengthen requirements for procurement of accessible goods, services and facilities for use in the Ontario Government, the Ontario Public Service, and the broader public sector, including a process for effective monitoring and reporting to the public on the broader public sector’s performance in this context.

Appendix 2 May 4, 2018 Letter from the Ontario Human Rights Commission to the Employment Standards Development Committee

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Fax.     :           (416) 314-4494                                               Téléc.  :           (416) 314-4494

May 4, 2018

Laura McKeen, Chair

Employment Standards Development Committee

Accessibility Directorate of Ontario

777 Bay Street,

6th Floor, Suite 601A

Toronto, ON M7A 2J4

Dear Chair,

Re: 2018 Review of the Employment Standards – Initial Recommendations Report

I hope this letter finds you well. I am writing today in regards to the Employment Standards Development Committee’s (SDC) review of the 2011 employment standards under Regulation 191/11 Integrated Accessibility Standards (IASR) of the Accessibility for Ontarians with Disabilities Act (AODA).

The Ontario Human Rights Commission (OHRC) has reviewed the SDC’s initial recommendations and we provide the following comment for consideration in your final recommendations to government:

The OHRC generally supports SDC recommendation #1 that calls for the government and the OHRC to review and strengthen guidelines and clarification for employers with regard to the differences between the Human Rights Code (the Code) and the AODA’s Employment Standards, including exploring the cause of the confusion.

  1. The OHRC recommends amending SDC recommendation #1 it to clarify that the government has responsibility for reviewing and strengthening its guidelines, and that the government should instead consult in this regard with the OHRC, an independent statutory agency.

Employers will better understand the relationship between their legal obligations under AODA standards and the Code if they also understand the nature of barriers that people with disabilities often experience at all stages of the employment life cycle, as well as the types of accommodations solutions that can help address barriers.

  1. The OHRC recommends further amending SDC recommendation #1 to provide that guidelines to clarify employer responsibilities under the AODA and the Code shall include information about the nature of barriers that job applicants and employees with disabilities typically experience, including attitudinal, physical, architectural, information and communications, technological and policy or practice barriers (as described in the definition of “barrier” under section 2 of the AODA) but also systemic barriers. The guidelines should also include information about different types of accommodation solutions and reference the OHRC’s Policy on ableism and discrimination because of disability and related OHRC resources.

SDC recommendation #2 calls for adding a definition of “employee” to the AODA or IASR that harmonizes with existing employment legislation. The Initial Recommendations Report notes that the SDC considered but decided not to recommend removing the current exclusion of volunteers and other non-paid workers from the IASR employment standards. The SDC raised concern that small non-profit organizations with few staff and a large volunteer base might experience undue burden. However, the OHRC is concerned that the IASR’s current exclusion of volunteers and non-paid workers is contrary to human rights law.

  1. The OHRC recommends amending subsection 20 (1) of the IASR to remove the blanket exclusion of volunteers and other non-paid workers with disabilities from application of the employment standards. The SDC might consider whether or not exclusion of volunteers and other non-paid workers might still be warranted under the IASR sections 28 and 29 requirements regarding documented accommodation and return to work processes and plans.

The OHRC supports SDC recommendation #3 to expand the IASR requirement for employers to give notice of availability of accommodations throughout recruitment to include notice of availability of accommodation during employment.

The OHRC supports SDC recommendation #4 for government to develop guidelines and best practices on how to make the recruitment, assessment and selection processes and materials inclusive by design.

The OHRC supports SDC recommendation #5 for government to review, strengthen and better promote guidelines and best practices for the existing IASR requirements in the recruitment, assessment, selection and offers of employment processes to clarify when or how to have appropriate conversations to accommodate an applicant’s and successful candidate’s disability related needs.

SDC recommendation #6 calls for removing the IASR section 27 requirement to provide “individualized” workplace emergency response information to employees who need it because of a disability. The SDC argues this provision is not necessary, and may cause confusion, because section 28 already provides that documented individualized accommodation plans shall include individualized workplace emergency response information if required. However, section 28 does not explicitly require documented individualized accommodation plans; it only requires a process for developing them; and the provision only applies to organizations with 50 or more employees. The OHRC is concerned because not every employee with a disability will require accommodation planning under section 28 to do their work, but they might need accommodation in case of a workplace emergency, regardless of the organization size.

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  1. The OHRC recommends that the SDC reconsider whether its recommendation #6, which would remove the IASR section 27 requirement to provide “individualized” emergency response information to employees who need it for a disability related reason, is the best approach to address its concern about confusion with the requirements of section 28. This change could adversely affect employees with disabilities who require no job accommodation under section 28 but do require accommodation in case of emergency.

The OHRC supports SDC recommendation #7 for government to align resources and tools for individualized accommodation planning processes with the OHRC’s policies on the procedural duty to accommodate, and to consult the OHRC to ensure harmonization.

While section 28 of the IASR requires a process for documenting individualized workplace accommodation plans, it does not provide for plans as a right. Not all employees with disabilities will necessarily require accommodations to do their job. Also, simple accommodations might not warrant a formal accommodation plan. However, employees should still be entitled to a documented individualized accommodation plan if they have disability related needs.

Individualized accommodation planning should also document the specific barriers an employee is experiencing, including attitudinal barriers, as this will help with finding solutions. Identifying disability-related barriers is a joint a responsibility of the employer and accommodation-seeker.

Individualized workplace accommodations and plans should also follow three human rights accommodation principles when looking for solutions: respect for dignity, individualization, as well as integration and full participation, in accordance with OHRC policies and human rights law.

  1. The OHRC recommends amending Section 28 (3) of the IASR employment standards to provide that a documented individual accommodation plan shall:
  2. Be created if an employee requests it because of a disability related need
  3. Follow the human rights accommodation principles of respect for dignity, individualization, as well as integration and full participation
  4. Identify any workplace barriers that an employee may be experiencing as described in the definition of “barrier” in section 2 of the AODA, including attitudinal barriers rooted in “ableism”

IASR training requirements and tools should go beyond the technical aspects of the IASR standards and the Code. Training should promote a deeper understanding of barriers, especially attitudinal barriers, which prevent people with disabilities from participating in employment and others aspects of society. Training should also include information about human rights principles for accommodation. Broader human rights information in training will help to effectively implement the IASR employment standards as well as the IASR section 4 requirement for organization-wide accessibility plans.

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  1. The OHRC recommends amending section 7 of the IASR, which requires training on the accessibility standards and the Code, to also require that the training include information on:
  2. The nature of the barriers described in section 2 of the AODA, including attitudinal barriers rooted in “ableism,” as well as systemic barriers
  3. Barriers specific to the employer’s workplace
  4. How to identify, prevent and remove barriers
  5. The human rights accommodation principles of respect for dignity, individualization, as well as integration and full participation

Individualized accommodation processes and plans must not only address accessibility standards that are regulated under the IASR. They must also address a broad range of disability-related barriers and accommodation needs including flexible work schedules or leaves, modified duties and policies, workstations and spaces, modified office equipment and technology, assistive devices, additional training, job re/bundling, alternative work, etc., in accordance with OHRC policies and human rights law.

  1. The OHRC recommends amending the phrase “accessibility needs due to disability” with simply “needs due to disability ” throughout the IASR employment standards so that individualized accommodation processes and plans requirements are not limited to regulated accessibility standards but are also to address a wide range of disability related barriers and solutions.

Data collection is another important strategy that will help government and public and private sector organizations gain a better understanding of the barriers people with disabilities experience, whether existing standards are effectively addressing barriers, and what new standards might be needed.

  1. The OHRC recommends amending the IASR to require that government, public sector organizations and large (50+ employee) private sector organizations collect disability related data, including the number of applicants and employees with disabilities by disability type, along with barriers experienced, accommodations provided and implementation times by employment stage.
  1. The OHRC also recommends amending section 4 of the IASR to require obligated organizations to include the data in their accessibility plans for preventing and removing barriers and meeting regulatory requirements.
  1. The OHRC further recommends that section 14 (4) of the AODA be invoked to prescribe the data be included in an obligated organization’s accessibility report to government.

We hope the SDC finds these comments and recommendations helpful. The OHRC looks forward to reviewing the SDC’s final recommendations as well as any government proposed amendments to the IASR employment standards and we may have additional comment at that time.

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Meanwhile, the OHRC is always available to meet with members of the SDC and staff of the Accessibility Directorate of Ontario to discuss our comments and recommendations.

Sincerely,

Original signed by

Dianne Carter

Executive Director and Chief Legal Counsel

Copy    Hon. Tracy MacCharles, Minister Responsible for Accessibility

David Lepofsky, Chair, AODA Alliance

Hon. Yasir Naqvi, Attorney General of Ontario

OHRC Commissioners

Appendix 3 The AODA Alliance’s June 5, 2017 News Release Responding to the Ontario Government’s “Access Talent Strategy on Employment for People with Disabilities

ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE

NEWS RELEASE FOR IMMEDIATE RELEASE

Today’s Wynne Government Disability Employment Strategy Offers Too Little Immediate Concrete Action and More Delays for Unemployed Ontarians with Disabilities, After More Than Four Years Since the Government Promised Action

June 5, 2017 Toronto: The Wynne Government’s Disability Employment Strategy, unveiled this afternoon, will do little for months, if not  years, to combat high levels of unemployment facing Ontarians with disabilities. In 2015, David Onley (Ontario’s former Lieutenant Governor and now the Wynne Government’s Special Advisor on Accessibility) declared that the unemployment rate facing people with disabilities in Canada is not only a national crisis, it’s a national shame.

“Fully four and a third years in the making, what the Wynne Government today announced to tackle high unemployment disability rates, is mainly high-level long-term concepts. It includes some good general ideas, but not enough specifics or timelines for results. It too often re-announces things Government had said it was already doing, and the risk of months of more delay. After years of waiting, what we need instead is a plan to hit the ground running now, with immediate, practical action that will quickly help get jobs for far too many unemployed and under-employed Ontarians with disabilities,” said David Lepofsky, chair of the non-partisan AODA Alliance that spearheads the campaign to achieve accessibility for Ontarians with disabilities.

“Premier Wynne committed to action way back in her first Throne Speech on February 19, 2013. It took her Government over a year after that just to set up an advisory Partnership Council. It took another year after that Council’s April 2016 final report to make today’s announcement.”

The Government today announces yet another new advisory council, a public education program that the Government previously said it was already doing, and months of more deliberations. The Government’s announcement also has some good high-level ideas. However, unemployed Ontarians with disabilities better not be holding their breath before they see concrete action and more jobs.

It’s helpful that the Government wants to focus in part on youth with disabilities, and that it implicitly acknowledges the need for internal Government bureaucratic reforms to employment services for people with disabilities.

However, problems in these areas and good ideas for front-line action have been well known for decades. The Wynne Government said it was consulting youth on these issues in its youth roundtables two ministers ago. It has taken the Government over two years to act on ideas its own advisory Partnership Council recommended over in May 2015 – recommendations the Government had said it was already moving on, back  in August 2015.

Some of this announcement wraps up last year’s old shoes as this year’s new birthday present. The Government’s proposal to educate employers on the benefits of employing people with disabilities is something that minister after minister has announced for years. The Government has for years held out the Ontario Public Service as a model employer, leading others by its example. That had disregarded the Government’s own internal accessibility shortcomings, highlighted two and a half years ago, in a Government-appointed independent review of the AODA, made public on February 13, 2015. The 2014 Moran Report stated:

“The disability community believes that the Government of Ontario has not succeeded in embedding accessibility into its internal operations.”

“It’s regrettable that the Wynne Government did not consult us on this Disability Employment strategy, despite our repeated offers,” said Lepofsky. “This announcement could have been far more beneficial for people with disabilities if the Wynne Government had talked to us about what it should include, as we offered.”

Below the AODA Alliance sets out the Government’s key points, and a detailed response to them.

We commend Minister MacCharles for at least getting something announced, but urge that concrete new action should swiftly follow. The AODA Alliance calls for the Wynne Government to take these actions:

  1. The Government should direct senior Government officials to now hold swift face-to-face consultations on concrete action on disability employment now, not limited by the contents of its June 5, 2017 high-level Disability Employment strategy. The Government should now commit to announcing a plan for immediate action on disability unemployment no later than September 1, 2017, with implementation to be completed by the end of this year. Accessibility Minister Tracy MacCharles should be assigned the full lead on this, with strong authority to break log-jams that typically plague inter-ministerial projects.
  1. The Wynne Government should commit to introducing a bill into the Legislature on the first day of this fall’s sitting, to remove employment barriers created in Ontario Government laws and programs, such as those that the Government’s own advisory Partnership Council reminded the Government about in its initial report, delivered over two years ago, on May 11, 2015. Today’s announcement did not promise action on these Government-created employment barriers.
  1. The Wynne Government should commit to promptly restore the Vocational Rehabilitation Services Act, repealed decades ago, that gave Ontarians with disabilities a good path through job-focused education toward entering the workforce.
  1. The Wynne Government should place little reliance on educating employers and on the Ontario Government’s leading by example. Both have been tried. Neither has proven to be the solution.
  1. The Government should speed up the establishment of the promised Education Standards Development Committee to make recommendations on what the promised Education Accessibility Standard should include. The Wynne Government should not impose restrictions on which accessibility barriers in Ontario’s education system that committee can examine.

Contact AODA Alliance Chair David Lepofsky aodafeedback@gmail.com

Twitter @DavidLepofsky

Key Points in the Wynne Government’s June 5, 2017 Disability Employment Strategy and AODA Alliance Responses to Them

* It is clear from the document released today that the Wynne Government means today’s announcement not as a final plan, but just as a first step in a longer-term process of developing a real plan:

In this document, Accessibility Minister Tracy MacCharles describes this announcement as “first steps.”

The document states:

“To develop a truly inclusive strategy over the long term, we will continue to collaborate with others.”

The document announces four “pillars” which it calls “strategic objectives.” The document states:

“Success in the long term will rely on sustained efforts to strengthen and connect these strategic objectives.”

Our Response:

After four years and four months since the Wynne Government committed to action on disability unemployment in its February 19, 2013 throne speech, unemployed Ontarians with disabilities need much more announced now, than just “first steps.” And “strategic objectives” that will require long term action to sustain and connect them.

* Accessibility Minister Tracy MacCharles states in the report’s opening:

“We have talked to people from across the private, public and non-profit sectors, and we have heard from those with a range of perspectives and lived experiences to inform these first steps.”

As quoted above, the document also states:

“To develop a truly inclusive strategy over the long term, we will continue to collaborate with others.”

Our Response:

The Ministry did not consult the AODA Alliance on what to include in this Disability Employment Strategy, despite our repeated requests for a chance to do so. As the community coalition that leads the non-partisan campaign for accessibility for people with disabilities in Ontario, its failure to consult with us on this strategy makes no sense. Our input and expertise could have substantially strengthened this document and avoided the problems we here identify.

* The document states:

“…the unemployment rate for people with disabilities is about 16% – far higher than the rate for people without disabilities.”

Our Response:

If anything, the disability unemployment rate could well be much higher.

Other data that the document cites shows this is virtually triple the unemployment rate facing people without disabilities. This shows why more specific, concrete result-oriented action was needed today.

* The document states:

“Unfortunately, too many people with disabilities face barriers that prevent them from participating in the workplace. These barriers block them from enjoying the personal benefits of employment. They also limit business growth, affecting employers as well as existing and future employees. That’s why removing these barriers is a social and economic imperative that Ontario must respond to collectively.”

Our Response:

We agree. That is why it is so harmful to unemployed Ontarians with disabilities that the Wynne Government has for years done such a paltry job of enforcing the Accessibility for Ontarians with Disabilities Act, including the employment accessibility requirements it enacted six years ago, on June 3, 2011.

The Ontario Government has repeatedly promised to effectively enforce the AODA. Today’s announcement offers no further action to enforce the AODA, including its employment accessibility requirements. Obligated organizations have had six years to bring themselves into compliance. The Ontario Government has had six years to educate obligated organizations on those requirements.

* The document makes it appear that its goal is getting jobs for 56,000 Ontarians with disabilities.

Our Response:

Elsewhere, the document confirms that almost 1.9 million Ontarians have a disability. While any increase in employment of people with disabilities would be welcomed, 56,000 appears to be a tiny fraction of those needing help in this area.

* The document states:

“Let’s take action to get 30% more people with disabilities working in Ontario.”

Our Response:

We do not know how the Government got the 30% figure. However, even if achieved, it would not bring the unemployment rate facing people with disabilities down to anything close to that facing people without disabilities. 30% of a number that is too small yields a result that is itself also too small.

* The document states:

“First, we will empower leading employers to share the message that it is simple and beneficial to hire people with disabilities. Through an innovative Employers’ Partnership table, we will build a coalition of influential leaders that can help shift the business culture across the province.

Next, we’ll work with youth and service providers, while also leveraging the expertise of the Ontario Public Service – one of Canada’s best Diversity Employers for 10 years running.”

Our Response:

As addressed below, neither of these ideas, listed as lead measures, can be expected to have significant impact.

* The document states:

“The first pillar is:

Start early – Inspire and support youth and students with disabilities.”

The document lists these future areas of action:

“The strategy will start with:

  • encouraging post-secondary education and future planning through enhanced career exploration at earlier ages
  • piloting a person-centred case management approach in the Ontario Disability Support Program to help more young people with disabilities identify employment goals and actions
  • supporting the transition to workplaces, apprenticeships, college, or university before and after graduation from secondary school through stronger community partnerships and youth programming
  • expanding community-connected experiential learning opportunities for students in kindergarten to grade 12 and adult learners
  • helping colleges and universities support students with disabilities throughout their studies, with an early focus on students with Autism Spectrum Disorders”

Our Response:

These are helpful areas needing immediate action. However, no immediate changes are taking place under this announcement, that unemployed people with disabilities will now experience. there is no way to know how many months or years will pass before any do take place. None of these areas come as a surprise. It has been well known for years that action on all these are needed.

The Government’s emphasizing more post-secondary education for people with disabilities is commendable. Yet it won’t get far until the Wynne Government enacts a strong, effective Education Accessibility Standard under the Accessibility for Ontarians with Disabilities Act to tear down the many accessibility barriers that impede students with disabilities from getting a good education in school and in post-secondary programs. The Wynne Government has been dragging its feet for far too long on this. Premier Wynne announced six months ago today that the Government would create an Education Accessibility Standard, as a result of our campaigning for it. Yet six months later, the Wynne Government has been moving at a snail’s pace to act on that announcement. It has just recently announced that it was recruiting people to serve on the promised Education Standards Development Committee, the very first step towards creating an Education Accessibility Standard. It is contemplating restricting that committee from being able to consider the full range of accessibility barriers in Ontario’s education system.

* The document states:

“Ontario will be piloting a new approach to supporting the employment goals of these youth. The focus will be on providing early upfront assessment at the point of application, collaborative planning, and individualized and coordinated wrap-around services and supports to help youth on their path to employment.”

Our Response:

This could be helpful. However, this is truly a case of spending years to reinvent the wheel. The Ontario Government had this kind of support for years under the former Vocational Rehabilitation Services Act, long ago repealed. Many years ago, we urged the Ontario Government to restore that fulsome program, during its first round of work on its anti-poverty strategy.

* The document states:

“Pillar 2 – Engage – Support and encourage employers as champions and partners.

Access Talent recognizes that making workplaces accessible and educating employers is essential to increasing employment for people with disabilities.

Misconceptions and misinformation about employing people with disabilities persist in many workplaces.

That’s why we want to support leading employers as accessibility champions. We want to empower them to spread the word about how simple—and beneficial—it is to hire people with disabilities. We want to connect them to other businesses to share best practices and raise the bar on what it means to be accessible to employees and customers.

We also want to partner with a diverse range of employers to gain their insights into the needs of businesses today. This will help us develop employment supports that are tailored to both job seekers and employers, helping to address skills gaps and sector shortages, while fueling business growth and job creation.”

The document also states:

“The strategy will start with:

  • amplifying the voices of employers who are leading by example through a new Employers’ Partnership Table.
  • championing and sharing best practices to help businesses break down barriers to employment for people with disabilities
  • Enhancing Employment Ontario supports tailored to the needs of both individuals and employers
  • promoting dialogue between employers through an innovative online platform that will connect businesses, people with disabilities, and the public to share advice and lessons learned
  • increasing awareness and supporting compliance with the Accessible Employment Standard”

The document also states:

“Ontario is bringing together business and non-profit leaders from across the province to form a new Employers’ Partnership Table. This dynamic group will advise the government on innovative ways to include more people with disabilities in our workforce. It will be empowered to influence businesses and non-profits across the province through coalitions building and targeted outreach.”

Our Response:

Much of this includes actions the Government has said it has been doing, or has done before. It took the Wynne Government over a year (2013-2014) to set up an employers’ partnership council to give advice in this area, and then two years (2014-2016 for that council to render its initial and final report. Now the Government takes yet a fourth year (2016-2017) to decide to set up another partnership council to give it advice. This brings foot-dragging to a new level.

Moreover, the Government has been claiming for years that it has been treating as a lead priority its strategy of informing obligated organizations of their duties on accessibility and the economic benefits to them of hiring people with disabilities and providing accessibility for them. This largely looks like more of the same, dressed up as if it were something new.

The Government should not have taken over two years to announce these high level ideas, when its Partnership Council recommended such over two years ago, in its initial report. None of them were new ideas, even at that time.

* The document states:

“Pillar 3 – Integrate – Create seamless, person-centred employment and training services.

Both people with disabilities and employers feel frustration in the face of complex and uncoordinated employment and training services.

They want a seamless, easy-to-access system that can meet their specific needs – whether that involves skills upgrading, higher intensity employment help, or straightforward information about available jobs and candidates.

Access Talent recognizes that employment supports are more effective when they are offered through a person-centered lens – one guided by an individual’s interests and strengths. A better coordinated and more integrated system will help connect people to jobs that match their aspirations and skills.

Employers also need to be connected to a streamlined system that takes into account their business goals and staffing challenges. That’s why Ontario’s employment and training services for people with disabilities will be integrated to respond to the full spectrum of abilities and supports required by jobseekers and employers to increase opportunities for everyone involved.

The strategy will start with:

  • Working with stakeholders to gradually integrate employment and training services for people with disabilities and introduce a new Supported Employment program in Employment Ontario. This new program will create high-quality, consistent services for job seekers with disabilities who require more intensive support and provide targeted services for employers
  • tracking best practices and testing innovative new approaches in education and employment support for people with disabilities, as well as developing performance measures to track program impact
  • improving how we serve people with disabilities through better training and new resources for staff at Employment Ontario Employment Service centres, which currently serve about 12,000 people with disabilities each year
  • promoting employment in the skilled trades through enhanced apprenticeship opportunities and vocational training programs
  • encouraging entrepreneurship by increasing awareness of entrepreneurship programming”

The document also states:

“Individualized support for personal success

Ontario’s Ministry of Advanced Education and Skills Development has invested in a new action plan to help colleges and universities support students with disabilities as they move from secondary to postsecondary education. Part of this support involves helping students with Autism Spectrum Disorder (ASD) to succeed at college and university.

Two pilot projects at Algonquin College in Ottawa and York University in Toronto create a transition process for students with ASD that is tailored to each person’s needs. This individualized approach identifies and addresses key issues and barriers for students as they start their postsecondary education, helping them maximize their strengths. The projects were led by Disabilities Services Office staff, and in-person supports helped students with their unique learning needs.

Nearly 90% of the students involved in the early stages of the pilot completed their first year of postsecondary study, successfully making the switch from secondary school to a future full of possibility.”

The document also states:

“Supported Employment

is an evidence-based program that will offer flexibility and choice to meet a broad range of job seeker needs, including job readiness supports, job matching, retention /on-the-job coaching services, as well as financial support for assistive devices, adaptive technologies and other workplace accommodations.

The transition to Supported Employment will be planned and introduced in phases to create consistent services that meet a range of needs. The first phase will launch in April 2018 in select communities across Ontario. We will use feedback from this first phase to plan for a full provincial rollout.

By integrating employment programs that serve people with varying support needs, job seekers with disabilities will have a clear door to employment and training services tailored to them. For employers, Supported Employment will provide better aligned services to meet their workforce needs and to create a more supportive and inclusive workplace.”

Our Response:

These measures, once actually developed and implemented in the unspecified future, can be helpful. The only time line for action is for a trial period for the first phase of these ideas, in an unspecified number of test communities, to start almost a year from now. In the longer passage above, the document states:

“The transition to Supported Employment will be planned and introduced in phases to create consistent services that meet a range of needs. The first phase will launch in April 2018 in select communities across Ontario. We will use feedback from this first phase to plan for a full provincial rollout.”

Beyond that, it is not clear when people with disabilities will actually see any of these measures in place, and how much will be new.

Nothing in this announcement commits to remove key Government –created accessibility barriers to employment that the Wynne Government’s own Partnership Council reported over two years ago as needing major reforms, in the social assistance system. Only the Government can fix this for all employers, public and private sector. In this regard, the Partnership Council’s initial report, delivered to the Wynne Government on May 1, 2015, included the following Government-created problem in the employment context, which today’s announcement does not fix:

“The Partnership Council’s focus is on creating employment for Ontarian’s with disabilities. However, experience from employers indicates there are significant barriers to employment supported through government policies. The most significant involve people supported through social assistance.”

* The document states:

“Pillar 4 – Trail blaze – Establish the Ontario government as a leading employer and change agent.

Government leadership is critical for this strategy to succeed. As a Top 100 Employer in Canada, and one of the country’s Best Diversity Employers and Top Employers for Young People, the Ontario Government is in an optimal position to counter negative attitudes and shift societal perceptions about people with disabilities. Access Talent seeks to leverage this advantage.

About 12% of the Ontario Public Service’s (OPS) employees self-identify as having a disability. We are on the right path, but we want to do even better.

The OPS’s progressive policies and diverse workforce position it to lead others in building more inclusive workplaces.

Another way the OPS can be a change agent is through strategic government spending and procurement. The government spends billions of dollars in goods and services each year. This significant purchasing power can be leveraged to generate greater social impact and promote the employment of people with disabilities.

The Government of Ontario will lead by example as an employer, taking a proactive role in shifting the culture, attitudes and perceptions of employers and the general public. It will also adopt innovative policies that build inclusion into all aspects of its operations.

The strategy will start with:

  • raising awareness and changing attitudes through public education and outreach targeted to employers, service providers, educators, healthcare professionals, and the general public
  • extending the government’s track record in supporting employees with disabilities through an OPS-specific campaign that reinforces the government’s expectations as an employer of choice
  • leveraging the OPS procurement framework to encourage more ministries to contract with vendors that employ under-represented groups, including people with disabilities
  • analyzing best practices within the OPS and sharing lessons learned across government and throughout the private and not-for-profit sectors
  • building on the OPS’s commitment to foster a workplace culture that promotes psychological health and safety and reduces stigma by breaking down barriers and challenging stereotypes of mental health.”

Our Response:

This announces nothing new. It too often flies in the face of the reality within the Ontario Public Service.

the Ontario Government has a long, long way to go before it can lead anyone by example in this area. For example, the Ontario Public Service lags behind on such key areas as ensuring digital accessibility within its workplaces.

The Government has claimed for years that the Ontario Public Service and the Ontario Government is already leading by example. Yet the AODA Alliance has emphasized for years that too often, the Ontario Government leads by the wrong example on accessibility. The 2014 final report of the Government-appointed Mayo Moran Independent Review of the AODA emphasized the need for substantial reforms on accessibility within the Ontario Government. We have seen no major, effective, implemented and enforced  new Government strategy in the 2.5 years since then to put that into action. the final report of the Mayo Moran AODA Independent Review stated:

“One of the prominent themes that emerged from the consultations was the belief of the disability community that the Government of Ontario has not succeeded in embedding accessibility into its internal operations. Stakeholders urged the appointment of a single minister – and a full-time deputy minister – to be responsible for ensuring that the Ontario Public Service (OPS) becomes a fully accessible employer and service provider. This new Cabinet post would focus on internal government operations, while the MEDEI minister would remain responsible for the development and enforcement of accessibility standards. To an extent, this thinking echoes the recommendation in the Beer Report to elevate the role of the assistant deputy minister in the ADO to the rank of deputy minister to lead a change management strategy within government. Many believe that there is an important opportunity for the Government to be seen as an accessibility champion, setting an example for other organizations.

The disability community believes that the Government of Ontario has not succeeded in embedding accessibility into its internal operations.

A particular concern with the Government, the Review heard, arose where public funds were actually used to create new barriers. Examples given include the Presto smart card, where the cash balance is shown on a screen that cannot be read by people with vision loss or dyslexia; and the absence of accessibility requirements for information technology and electronic kiosks in the Government’s 10-Year Infrastructure Plan. These cases sparked some groups to recommend a comprehensive strategy to ensure public money is never used to create, maintain or worsen barriers against people with disabilities. It was also suggested that establishing compliance with the Human Rights Code, as well as the AODA, should be a precondition to obtaining public funds through procurement, grants or loans.”

This pillar in the Government’s document, announced today, promises little for quite some time. We know of no evidence that inspiring speeches and PR campaigns actually change what employers do, when it comes to increasing employment for people with disabilities.

Background Resources

For a chronology of the Wynne Government’s foot-dragging on the issue of disability employment since it made its February 19,2013 announcement of this priority, visit http://www.aoda.ca/wynne-government-to-unveil-its-promised-new-strategy-to-tackle-high-unemployment-facing-ontarians-with-disabilities-on-june-5-2017-a-strategy-on-which-the-aoda-alliance-was-not-consulted/

To read the April 29, 2016 Final Report of the Partnership Council on Employment Opportunities for People with Disabilities, visit

https://www.ontario.ca/page/partnership-council-employment-opportunities-persons-disabilities-report?_ga=1.224404959.470033996.1467040629

To read the AODA Alliance’s February 19, 2016 Analysis of the Partnership Council’s Initial Report and the Wynne Government’s Response, visit https://www.aodaalliance.org/strong-effective-aoda/feb-19-2016-aoda-alliance-analysis-of-partnership-council-initial-report-and-government-response.doc

To read the Partnership Council’s May 11, 2015 Initial Report on Employment for People with Disabilities, visit https://www.aodaalliance.org/strong-effective-aoda/partnership_council_report_final-en.doc

To read the May 11, 2015 covering letter from the Partnership Council to the Wynne Government (which the Wynne Government did not disclose to the public until we later pressed for it), visit https://www.aodaalliance.org/strong-effective-aoda/may-11-2015-Final-Ministers-Cover-Letter.doc

To read Economic Development Minister Brad Duguid’s August 28, 2015 statement in response to the Partnership Council’s Initial Report, visit https://www.aodaalliance.org/strong-effective-aoda/august-28-2015-brad-duguid-statement-on-partnership-council.doc

To read the Wynne Government’s August 28, 2015 Backgrounder on the Partnership Council’s Initial Report, visit https://www.aodaalliance.org/strong-effective-aoda/august-28-2015-government-backgrounder-on-partnership-council-report.doc

To read the AODA Alliance’s February 7, 2014 response to the Wynne Government’s appointment of the Partnership Council, visit https://www.aodaalliance.org/strong-effective-aoda/02072014.asp

To read the 2014 final report of the Mayo Moran 2nd AODA Independent Review, visit https://www.aodaalliance.org/strong-effective-aoda/Final-Report-Second-Legislative-Review-of-the-AODA.docx

To read the AODA Alliance’s analysis of the final report of the Mayo Moran AODA Independent Review, visit https://www.aodaalliance.org/strong-effective-aoda/04292015.asp and https://www.aodaalliance.org/strong-effective-aoda/05012015.asp